CONVENTIONALISM AND ITS CRITICS: METHODOLOGY ESSAY

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Undergraduate Jurisprudence (SECTION 1) Flashcards on CONVENTIONALISM AND ITS CRITICS: METHODOLOGY ESSAY, created by yassinr on 05/13/2014.
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Is it POSSIBLE for LEGAL THEORY to be METHODOLOGICALLY NEUTRAL? (2013) THESIS: It is not possible for legal theory to be methodologically neutral, as is illuminated by DWORKIN in the case of MRS SORENSON. This shows that the methodology determines the substantive theory, and the SUBSTANTIVE CHOICE made in REAL-LIFE CASES, which means that Hart inevitably does take a STANDPOINT on the substantive. 2. But, even if his theory was methodologically neutral, it is INCOMPLETE, as highlighted by PERRY and FINNIS 3. This incomplete nature in itself is not enough to dismiss the theory, but it is also USELESS (FINNIS) because it does not fulfil its aims and does not resemble legal theory. Ends up being very much tantamount to the ANTHROPOLOGICAL PRACTICE of those he critiqued, i.e. AUSTIN
INTRODUCTION Will focus on HART'S METHOD, as he draws on other attempts to be methodologically neutral (Witt and JL Austin) as well as criticising the methods of early legal positivists BENTHAM and AUSTIN
SUMMARY OF HART'S METHOD 1. Hart claims his method behind his legal theory is both GENERAL and NEUTRAL 2. NEUTRAL in the sense that it doesn't take a view on the SUBSTANTIVE MERITS of the law or the REASONS for following it 3. HART: in order to CAPTURE LAW, we must develop a "SHARPENED AWARENESS of WORDS", and OBSERVE how COMPETENT SPEAKERS employ the LANGUAGE OF LAW in the relevant LANGUAGE GAME 4. HART: this method is favoured over trying to single out NECESSARY and SUFFICIENT CONDITIONS as AUSTIN and BENTHAM do 5. HART: we should instead pay attention to the CONTEXT-- ASK 'under what CONDITIONS does one have a RIGHT/a NORMATIVE ORDER count as LAW?" 6. takes a VOLITIONAL, rather than EMOTIONAL, stance to the CRITICAL REFLECTIVE ATTITUDE of persons
ADVANTAGES TO HART'S METHOD 1. doesn't attempt the impossible of trying to find PHYSICAL COUNTERPARTS to LEGAL CONCEPTS (e.g. CORPORATION/CORPORATE LAW). Instead-- attentive to INSTITUTIONAL FACTS 2. sensitive to 'FAMILY RESEMBLANCES'-- if something does not fit the central, paradigmatic case, it falls into the periphery
POINT 1: NOT POSSIBLE MACCORMICK: CONSTRUCTIVE CRITICISM of HART. Argues Hart's account is INCOMPLETE-- extends on Hart's methodological requirement of recording, but not endorsing, the INTERNAL PERSPECTIVE. -Makes a distinction between the EXTREME AND NON-EXTREME EXTERNAL perspectives BUT: DWORKIN: C.F. MRS SORENSON'S CASE. the legal theory in itself is EVALUATIVE, because it leads to a particular stance when it comes to SUBSTANTIVE ARGUMENTATION. The stance HART TAKES because his methodology focuses on looking at social facts, is on the side of the pharmaceutical companies, and AGAINST Mrs SORENSON C.F. FINNIS EVALUATIVE AS: 1. when choosing what to describe, seeing those things as law as opposed to other factors (c.f. KELSEN) 2. by saying it is a necessary starting point to evaluation, making a judgment that need important and significant points to avoid a 'miscallaneous heap of rubbish'
POINT 2: EVEN IF WAS POSSIBLE, WOULD NOT BE OF ANY USE AS A LEGAL THEORY C.F. DWORKIN VALUES OF LAW E.G. JUSTICE CANNOT BE DETACHED FROM THEIR VALUES. So trying to do this is useless. They are NON-INSTRUMENTAL INTEGRATED VALUES WHICH MUST BE TAKEN HOLISTICALLY, and interpreted in the BEST LIGHT in its achievement of these values c.f. FINNIS: cannot distinguish between central (focal cases of law) and peripheral ones without a view on PRACTICAL REASONABLENESS-- not just the internal PoV, but whether the person sees the law as a MORAL OBLIGATION-- moral ideal, if not key to justice. Also, closer they are to practical reasonableness, more central. so, when getting on to the substantive task of distinguishing central from peripheral cases of law, need to have a methodology that allows you to do that-- through the internal Pov
POINT 3: WHEN LOOKING AT THE SUBSTANTIVE CONSEQUENCES OF HART'S THEORY, SEE THAT HIS METHODOLOGY IS FLAWED DWORKIN- HART'S THEORY is NOT DESCRIPTIVE IN ANY WAY-- accuses HART of SEMANTIC interpretation, and if this is the case, HART FAILS DRASTICALLY as there exists no shared criteria between lawyers anywhere for endorsing/rejecting propositions of law
KEY THINGS TO BEAR IN MIND: HART'S METHOD influenced by WITTGENSTEIN and JL AUSTIN meaning is constructed through our PRACTICES and USE of CONCEPTS W: LANGUAGE GAMES= THE CONTEXT OF USE. Like all games, governed by RULES JLA: SUCCESSFUL COMMUNICATION depends on CONDITIONS e.g. position of AUTHORITY
HART on the EXTREME EXTERNAL PoV: EXTREME EXTERNAL PoV= person who, as an OBSERVER of human behaviour, RESTRICTS himself to viewing it 'PURELY in terms of observable regularities of conduct, predictions, probabilities and signs' (CL) To speak only of 'HABIT' (as AUSTIN and BENTHAM do) is to CONFINE ONESELF to the 'EXTREME EXTERNAL PoV' and thus to commit oneself to a scheme of DESCRIPTION/UNDERSTANDING WHICH PRECLUDES ACCURATE REPRESENTATIONS OF RULES, including LEGAL RULES as they function within the CONSCIOUSNESS of people within society'
C.F. HART- 'DEFINITION AND THEORY IN JURISPRUDENCE' 1 THE METHOD OF ELUCIDATION HART RECOMMENDS: LINGUISTIC PHILOSOPHY. WHY? a) Words like 'right' or 'duty' SILENTLY ASSUME A SPECIAL AND VERY COMPLICATED SETTING =The existence of a LEGAL SYSTEM -Implies GENERAL OBEDIENCE to the operations of SANCTIONS of the system, and general likelihood that this will continue. b) e.g. 'A has a right to be paid £10 by B'-- the use of this statement also has a SPECIAL CONNECTION with a particular VALUE of the system-- has drawn a conclusion from the RELEVANT but UNSTATED RULE, and from the RELEVANT but UNSTATED FACTS of the case. c) Assertion 'Smith has a right to be paid £10' said by a JUDGE in deciding the case has a different STATUS from the utterance of it out of court -Judge's utterance = OFFICIAL and AUTHORITATIVE... the other is none of these things. -yet- BOTH CONCLUSIONS OF THE LAW. d) In any system, legal or not, RULES, for excellent practical reasons, ATTACH IDENTICAL CONSEQUENCES to any one of a set of VERY DIFFERENT FACTS. e.g. using a terminology like that of CORPORATION LAW which will show that it is this sort of rule that we are applying to the facts
HART: 2. FUNDAMENTAL POINT: BENTHAM'S WARNING: We should not (as traditional method does) ABSTRACT WORDS from the sentences in which alone their FULL FUNCTION will be seen, and then demand of them so abstracted their GENUS and DIFFERENTIA
HART: 3. CRITICISMS of the TRADITIONAL METHOD (DEFINITION): Cannot help us when our perplexities are DEEPER: a) UNILLUMINATING: a mode of definition designed to locate some substantive species within some familiar category cannot elucidate the characteristics of some anomalous category b) MISLEADING: it will suggest that what is in fact an anomalous category is after all some species of the familiar
HART: 4. BENTHAM'S METHODOLOGICAL CLAIM (when not paraphrasing) Specifies some of the CONDITIONS NECESSARY for the TRUTH of a sentence of the form 'you have a right' Conditions include: a) the existence of the law imposing a duty on some other person b) it must be a law which provides that the BREACH of the duty should be visited with a SANCTION if you/someone on your behalf choose
HART: 5. HART'S IMPROVEMENTS to BENTHAM'S CONDITION METHOD: a) Show the SPECIAL POSITION of one who has a right by mentioning NOT the remedy (instead of sanction) but the CHOICE which is open to one who has a right as to whether the corresponding duty shall be performed or not -Distinguishes RIGHTS from those that only impose OBLIGATIONS b)OBLIGATION to perform the corresponding duty is made by law to depend on the CHOICE of the individual who is said to have the RIGHT or the choice of some person AUTHORISED to act on his behalf
HART: 6. METHOD HART TENDERS: In the expression 'A LEGAL RIGHT': 1. A statement of the form 'x has a right' is true IF the following CONDITIONS are satisfied: a) there is in existence a LEGAL SYSTEM b) Under a rule/rules of the system, some other party, y, is, in the events which have happened, OBLIGED to do/abstain from some action c)This OBLIGATION is made by law DEPENDENT on the CHOICE either of X or some other person authorised to act on his behalf so that either Y is BOUND to do/abstain from some action ONLY IF x (/authorised) so chooses or alternatively only until (/authorised) chooses otherwise [we grasp this INTERNAL PoV of obligation, without endorsing it ourselves. and c.f. MacCormick- by taking the DETACHED INTERNAL PERSPECTIVE] 2. A statement of the form 'x has a right' is used to draw a CONCLUSION OF LAW in a particular case which FALLS UNDER SUCH RULES
HART: 7. KEY POINT HART asserts with regards the example of CORPORATIONS: Any ordinary words/phrases, when conjoined with the name of corporations, take on a SPECIAL LEGAL USE. Words now CORRELATED WITH THE FACTS, not solely with the rules of ordinary English, but also by the RULES OF ENGLISH LAW
8. MACCORMICK'S CONSTRUCTIVE CRITICISM: a) SOCIAL RULES versus HABITS HART: a)SOCIAL RULES- FROM SOCIAL SOURCES- exist in virtue of SOCIAL PRACTICES, not in isolation of what men and women living together socially do, say and think b) 'If a social rule is to exist, some [members] must at least look on the behaviour in question as a GENERAL STANDARD to be FOLLOWED BY THE GROUP AS A WHOLE. -SOCIAL RULE- 'INTERNAL ASPECT' in addition to EXTERNAL ASPECT... which an observer can record' c) CONTRAST 'HABITS' (c.f. AUSTIN): denying the possibility of explaining RULES solely by reference to EXTERNAL REGULATIES OF BEHAVIOUR e.g. observing driver stopping at a red light as STATISTICAL REGULARITY- but this does NOT entail OBSERVATION OF A SOCIAL RULE d) EXTERNALLY OBSERVABLE REGULARITY/PATTERNING of behaviour is NECESSARY but NOT SUFFICIENT explanation of RULE e)FURTHER NECESSARY REQUIREMENT-- ATTITUDE among members of a group whose behaviour does NOT reveal such patterning: 'if find a CRITICAL REFLECTIVE ATTTIUDE to [that]pattern of behaviour as a COMMON STANDARD, then the addition of that 'INTERNAL' attitude to the 'EXTERNAL' regularity of behaviour is SUFFICIENT for the EXISTENCE OF A RULE'
MACCORMICK: b) HART'S FURTHER DISTINCTIONS between RULES and HABIT: 1. a) RULE= DEVIATION from the normal pattern is treated as a FAULT or LAPSE OPEN TO CRITICISM b) HABIT-- failing to act 'need not be a matter of any form of criticism 2. RULE-- CRITICISM when DEVIATION occurs is regarded as JUSTIFIED/LEGITIMATE-- NOT OPEN to justified criticism for criticising the deviation NB CONCEPT OF JUSTIFIED CRITICISM PRESUPPOSES SOCIAL STANDARDS, NORMS OR PERHAPS EVEN RULES ABOUT HOW PEOPLE SHOULD DEAL WITH EACH OTHER =CRITICAL REFLECTIVE ATTITUDE
MACCORMICK: c) SERIOUS OBJECTION TO THE CRITICAL REFLECTIVE ATTITUDE: Expressions such as 'OUGHT', 'SHOULD', and 'RIGHT' are equally available and equally used in situations where the speaker is NOT invoking any kind of social rule e.g. vegetarian who says it is wrong to eat animal flesh may well be aware that there is no social rule condemning meat-eating in their community, yet make NO LINGUISTIC ERROR in calling it 'WRONG' OBJECTION to taking the use of normative terminology as a sufficient identifier of the ATTITUDE Hart is trying to elucidate -Attitudes MATTER, but Hart has been INSUFFICIENTLY SUBTLE in differentiating between the relevant attitudes e.g. person who holds meat eating is wrong ALSO holds crossing a red light is wrong-- what is the DIFFERENCE between these? -if NO DIFFERENCE, objection loses force. BUT there ARE differences
MACCORMICK: d) CAPTURE DIFFERENCE THROUGH HERMENEUTIC INQUIRY-- Hart's introduction of the INTERNAL ASPECT essentially appropriate, but INCOMPLETE HERMENEUTIC INQUIRY= Have to INTERPRET the meaning of such judgments from the PoV of BECOMING the person who passes judgment, rather than from Pov of one who scrutinises behaviour FROM THE OUTSIDE
MACCORMICK: f) The INTERNAL ASPECT OF RULES RECONSIDERED CRITICAL REFLECTIVE ATTITUDE: Can be best understood as comprehending: a) an element of COGNITION, caught by the term REFLECTIVE, b) and an element of or relating to VOLITION or WILL, caught by the term CRITICAL a) COGNITIVE ELEMENT- covers notion of PATTERN of behaviour -further- capacity to APPRAISE actual doings and register instances conforming to, not conforming to, or irrelevant to the pattern b) VOLITION/WILL element-- comprehends some WISH/PREFERENCE that the act/abstentation from acting, be done when the envisaged circumstances obtain -need not be unconditional-- commonly CONDITIONAL upon pattern being SHARED PREFERENCE among an at least broadly identifiable group of people-- depends on MUTUAL BELIEFS AND EXPECTATIONS CONTRAST vegetarian example: VOLITIONAL COMMITMENT ON POINT OF PRINCIPLE, NOT IN ANY WAY CONDITIONAL UPON COMMON/SHARED OBSERVANCE IN GROUP
MACCORMICK: g)THEREFORE the EXTREME EXTERNAL PoV is INADEQUATE The METHOD OF OBSERVATION OF CONDUTCT FROM THE EXTREME EXTERNAL PoV is INADEQUATE to capture those concepts of lawyers and laymen that are BOUND UP WITH RULES AND STANDARDS OF CONDUCT
MACCORMICK: h) HART UNSATISFACTORILY PASSES TOO LIGHTLY OVER THE NON-EXTREME VARIANT OF THE EXTERNAL PoV NON-EXTREME EXTERNAL POV seems to capture that which the HARTIAN LEGAL THEORIST must hold: a) HART describes himself as a LEGAL POSITIVIST-- understanding a law/legal system in its character is a matter INDEPENDENT of: i) one's own moral/other commitment to upholding that law/legal system ii)and of one's own view as to the MORAL QUALITY of the law/legal system in question
MACCORMICK: j)REQUIREMENTS OF THE NON-EXTREME EXTERNAL PoV: 1. FULL SHARING in the COGNITIVE ELEMENT of the 'INTERNAL PoV'-- the understanding of the PATTERN(s) OF BEHAVIOUR 2. FULL APPRECIATION OF, BUT NOT necessarily SHARING IN, the VOLITIONAL ELEMENT-- the WILL/PREFERENCE for CONFORMITY to the pattern as STANDARD
MACCORMICK: HART'S AVERSION TO NATURAL LAWYERS' MORALISATION OF THE LAW HART: The existence of the law DEPENDS on COMPLEX SOCIAL FACTS. Therefore ALL LAWS always open to MORAL CRITICISM NO CONCEPTUAL GROUND for supposing that the law which IS and the law which OUGHT to be COINCIDE
MACCORMICK: Why it is important for HART for people to maintain a CRITICAL MORAL STANCE towards the law Morally incumbent on everyone to REJECT the assumption that the existence of any law can ever ITSELF settle the question what is the morally right way to act
MACCORMICK: HOW HART is DIFFERENTIATED from KELSEN: FOR BOTH: LAW is INTRINSICALLY NORMATIVE-- determines what OUGHT to be done relative to a certain form of social order, NOT what actually IS done. BUT: i) KELSEN (following KANT) takes this to mean there is a SEPARATE CATEGORY of HUMAN THOUGHT-- category of OUGHT-- radically distinct from the IS WHEREAS: ii) HART DISAGREES: to understand the NORMATIVITY of LEGAL, MORAL or other SOCIAL RULES, we need ONLY to reflect on HUMAN ATTITUDES to HUMAN ACTION (so can see that even though some may not follow a rule, still a social rule because of justified criticism of others. Don't need to look elsewhere for the ought)
MACCORMICK: HART vs. REALISTS (where DWORKIN'S SEMANTIC STING comes in) a) AGAINST REALISTS-- HART AFFIRMS LAW essentially comprises RULES and a great part of legal business consists in STRAIGHTFORWARD AND UNCONTROVERSIAL APPLICATION, OBSERVANCE AND ENFORCEMENT of the rules b) BUT-- accepts, in PARTIAL AGREEMENT with REALISTS, that RULES CANNOT SETTLE EVERYTHING. Often, rules are VAGUE, yet decisions must be reached. c) Therefore Hart concludes there is and must be a considerable range of DISCRETION left open to JUDGES and other officials-- necessarily have regard to NON-LEGAL FACTORS e.g. MORAL AND POLITICAL OPINION, as well as REFLECTING on the GENERAL BACKGROUND of LEGAL RULES AND PRINCIPLES for such guidance as they can give
MACCORMICK: DWORKIN'S RESPONSE to HART'S DISCRETION comment DWORKIN: a) In its MATURE FORMS, law COMPLETELY DETERMINES EVERYONE'S RIGHTS b) Judges have no business to do other than render every person his/her rights c) only discretion in WEAK SENSE, i.e. INTERPRETATIVE DISCRETION d) Grounding of Dworkin's thesis-- SOCIAL RULE SKEPTICISM- law is NOT just a social practice which spawns from social rules-- stems from BACKGROUND MORALITY-- the morality of the POLITICAL COMMUNITY to which the law belongs e) RIGHTS of legal persons that are founded in INSTITUTIONAL PRINCIPLES (= PARTIAL and INCOMPLETE EMBODYING of the PRINCIPLES of the community's MORALITY) only PARTLY CONCRETISED via explicit rules f) THEREFORE, SILENCE/AMBIGUITY in rules MERELY OBLIGES US TO HAVE DIRECT RECOURSE to principles that are the TRUE and ULTIMATE GROUND of legal rights, anyway g) Hart's theory significantly FAILS to embark on any SUBSTANTIVE discussion of principles to parallel his discussion of rules
HART: [METHODOLOGY'S LINK WITH THE SUBSTANTIVE] LAW as a UNION of PRIMARY and SECONDARY RULES 1. line separating RULES OF OBLIGATION from others: [CONDITIONS] RULES conceived as IMPOSING OBLIGATIONS when the GENERAL DEMAND FOR CONFORMITY is INSISTENT and the SOCIAL PRESSURE brought to bear upon those who DEVIATE is GREAT. *INSISTENCE ON THE IMPORTANCE/SERIOUSNESS OF SOCIAL PRESSURE BEHIND THE RULES= THE PRIMARY FACTOR DETERMINING WHETHER THEY ARE THOUGHT OF AS GIVING RISE TO OBLIGATIONS*
HART: 2. 2 OTHER OBLIGATION CHARACTERISTICS [CONDITIONS] 1. rule seen as NECESSARY for the MAINTENANCE OF SOCIAL LIFE/SOME HIGHLY PRIZED FEATURE OF IT 2. tend to involve SACRIFICE/RENUNCIATION
HART'S POSCRIPT: 1. DWORKIN'S CENTRAL OBJECTION TO DESCRIPTIVE LEGAL THEORY DWORKIN: Legal theory must take account of an INTERNAL PERSPECTIVE of the law which is the viewpoint of an INSIDER/PARTICIPANT in a legal system, and no adequate account of this INTERNAL PERSPECTIVE can be provided by a DESCRIPTIVE THEORY whose viewpoint is NOT that of a participant but that of an EXTERNAL OBSERVER
HART: 2. RESPONSE to DWORKIN'S CRITICISM OF DESCRIPTIVE THEORY Participants MANIFEST their INTERNAL PoV in ACCEPTING the law as providing GUIDES to their conduct and STANDARDS of criticism DESCRIPTIVE LEGAL THEORIST does not as such HIMSELF share the participants' acceptance of the law in these ways, but he CAN and SHOULD DESCRIBE such an acceptance
DWORKIN: HART'S POSTRCRIPT 1. DWORKIN'S CHALLENGES 1. a GENERAL THEORY of how valid law is to be identified IS NOT A NEUTRAL DESCRIPTION of legal practice, but an INTERPRETATION of it that aims not just to DESCRIBE but to JUSTIFY it-- to show WHY the practice is VALUABLE --if this true, then the LEGAL THEORY ITSELF rests on MORAL AND ETHICAL JUDGMENTS AND CONVICTIONS -AND ORDINARY LEGAL ARGUMENT HAS SAME CHARACTER-- LOOKING PAST THE LAW FOR PRINCIPLES THAT BEST JUSTIFY IT 2. THEREFORE legal philospher's theory of law is NOT DIFFERENT in character from, though much more abstract that, ordinary legal claims
DWORKIN: 3. HART'S SOURCES THESIS Instead of identifying the general principles that underlie and JUSTIFY the settled law (c.f. SORENSON'S CASE), HART'S RESPONSE IS QUITE DIFFERENT: LOOK TO SOCIAL SOURCES OF LAW (LEGISLATION, JUDICIAL DECISIONS, SOCIAL CUSTOMS) WITHOUT REFERENCE TO MORALITY, except where the law identified has itself incorporated moral criteria for the identification of the law (POSTSCRIPT)
DWORKIN: 4. REJECTION of Hart's claim that both methods can co-exist HOLD OPPOSITE OPINIONS on the SAME ISSUE-- whether MRS SORENSON has a claim in law. Therefore hard to credit Hart's claim that we are not really disagreeing/ not trying to answer the same questions
DWORKIN: 5. 2 DISAGREEMENTS between DWORKIN and HART: 1. How law is to be identified 2. what kind of theory a general answer to that question is a) Hart-- only and PURELY a DESCRIPTION of legal practice *b) DWORKIN-- INTERPRETATIONS of legal practice, resting on and making MORAL CLAIMS*
DWORKIN: 6. ARCHIMEDEAN CLAIM EMBARRASSED BY 2 CONNECTED DIFFICULTIES: 1. ORDINARY POLITICAL ARGUMENT often includes, not merely as a neutral threshold to substantive controversies but as a CENTRAL ELEMENT to those controversies, ARGUMENT about the very conceptual issues that philosophers study 2. Term 'DESCRIPTIVE' is AMBIGUOUS but each sense of 'DESCRIPTION' proves PATENTLY INAPPLICABLE
DWORKIN: 7. DEFINITIONS THEMSELVES are CONTROVERSIAL NOT NEUTRAL. THE SUBSTANTIVE ARGUMENT DEPENDS ON THE DEFINITION PICKED, AND CANNOT SEPARATE THE FORMER FROM THE LATTER. And because definitions are always CONTESTED e.g. DEMOCRACY, definitions are not neutral.
DWORKIN: 8. [SEMANTIC STING] NEUTRAL= SEMANTIC ANALYSIS? ARGUMENTS ABOUT THE DEFINITIONS e.g. liberty. assumes set of CRITERIA SHARED. but if this was the case, would be no arguments
DWORKIN: 9. DETACHED VS INTEGRATED VALUES KEY POINT: makes no sense to treat POLITICAL VALUES AS DETACHED VALUES e.g. JUSTICE. Value it because of the CONSEQUENCES for lives we lead.
DWORKIN: 10. HART'S THEORY NOT NEUTRAL IN ARGUMENT-- TAKES SIDES e.g. MRS SORENSON CASE-- takes sides in FAVOUR of those who insist that the LEGAL RIGHTS of the parties are to be SETTLED ENTIRELY by consulting the TRADITIONAL SOURCES of LAW
DWORKIN: 11. what KIND of NEUTRAL does Hart claim? Hart: meant his theory is DESCRIPTIVE as OPPOSED TO MORALLY/ETHICALLY EVALUATIVE But Hart says morality becomes relevant to identifying law when some 'SOURCE' has decreed that morality should have that role cites AMERICAN CONSTITUTION as example BUT THERE IS NO CONSENSUS EITHER IN FAVOUR/AGAINST MORAL READING OF CONSTITUTION-- MATTER OF FIERCE DISAGREEMENT
DWORKIN: 12. therefore, HART FAILS TO BE DESCRIPTIVE IN EVERY SENSE OF WORD NOT SEMANTIC (because HART DENIES that it is, though DWORKIN still thinks that is what HART INTENDED-- and if he did, his theory is doomed as there is NO SHARED CRITERIA for endorsing/rejecting propositions of law) NOT EMPIRICAL GENERALISATIONS NOT THE NATURAL KIND
FINNIS: 1. NOT GENERAL THUS NOT NEUTRAL THE SUBJECT MATTER of the THEORIST'S DESCRIPTION does NOT come neatly DEMARCATED from OTHER FEATURES OF SOCIAL LIFE AND PRACTICE SO, how does a theorist DECIDE what is to COUNT AS LAW for the purposes of DESCRIPTION?
FINNIS: 2. POINTS out how ALL POSITIVISTS have FAILED 1. BENTHAM-- 'REAL ENTITIES' [goes back to HART'S CRITICISM-- what about things with no corresponding truth?] 2. AUSTIN-- simplicity of HABIT theory-- and DEFINITENESS -but does not consider the COMPLEXITY AND ARTIFICIALITY DOWN THE LINE 3. KELSEN-- no critical attention to the METHODOLOGICAL PROBLEM of selecting CONCEPTS for the purpose of value-free or descriptive general theory -HOWEVER-- AWARENESS (absent in B AND A) that POINT/FUNCTION is INTRINSIC to the constitution, and therefore THE DESCRIPTIVE UNDERSTANDING, of the subject matter -KELSEN has a PRECONCEPTION in his mind of what the law is, then picks 'laws' that FIT HIS DESCRIPTION to say that this is the BASIC NORM. DOES NOT EXPLAIN WHY HE HAS SELECTED SUCH USAGE OF THIS WORD.
FINNIS: BOTH HART AND RAZ'S POSITION= UNSTABLE AND UNSATISFACTORY -Against AUSTIN and KELSEN-- Sharply differentiated the INTERNAL LEGAL POV from PoV of of those whho merely acquiensce in the law and who only do so to the extent they fear punishment will follow BUT- BOTH THEORISTS FAIL TO DIFFERENTIATE FURTHER-- OMITS THE PRACTICAL SIGNIFICANCE OF THE VIEWPOINT. Thus cannot separate central cases from the peripheral IDENTIFYING FOCAL CASE OF LAW-- CENTRAL CASE-- BY looking to see if PoV is the CENTRAL CASE OF THE VIEWPOINT-- perceiving law as the MORAL IDEAL, if not a compelling demand for JUSTICE. To do so, law has to be perceived as MORAL OBLIGATION, not just discretionary or statistically customary order
FINNIS: MORAL= uncertain connotations. INSTEAD-- PRACTICAL REASONABLENESS AND, the more practicably reasonable, the more it is a CENTRAL VIEWPOINT
FINNIS: CONCLUSION 1. EVALUATION of the theorists= INDISPENSIBLE and DECISIVE in the selection or formation of any concepts for use in description [making HART EVALUATIVE] 2. Theorists cannot identify the CENTRAL CASE of the PRACTICAL VIEWPOINT which they use to identify the CENTRAL CASE of their subject mater, unless they decide what the REQUIREMENTS OF PR really are (what are the requirements of moral obligation) 4. Insisting on the need for descriptive theory before evaluation can occur is inevitably based on the THEORETICAL REQUIREMENT THAT A JUDGMENT OF SIGNIFICANCE AND IMPORTANCE MUST BE MADE if the theory is to be more than a 'miscallaneous heap of rubbish' 5. therefore, MUTUAL BUT ASSYMETRICAL INTERDEPENDENCE between project of describing human affairs and project of evaluating human options with a view of acting reasonably well. -DESCRIPTION ALONE CANNOT DETERMINE WHAT DESCRIPTIONS ARE REALLY ILLUMINATING AND SIGNIFICANT. NEED EVALUATION.
PERRY: HART'S METHODOLOGICAL POSITIVISM ASSESS WHETHER HART IS DESCRIPTIVE (MORALLY NEUTRAL WITH NO JUSTIFICATORY AIMS) AND GENERAL, BY LOOKING AT HIS SUBSTANTIVE THEORY
PERRY: HART DOES NOT FOLLOW EMPIRICAL METHODOLOGY-- DOESN'T HAVE THE EXPLANATORY POWER IN A SCIENTIFIC SENSE e.g. PREDICTIVE POWER. (not neutral in way he claims) HART DOES NOT GIVE US ANY REASON TO BELIEVE THAT HIS THEORY OF LAW IS SUPERIOR, IN TERMS OF EXPLANATORY POWER, TO RADICALLY EXTERNAL THEORIES (like AUSTIN's in terms of PREDICTIVE POWER)
PERRY: 2. WHEN LOOKING AT THE EVUALITIVE NATURE OF THE SUBSTANTIVE, INCONSISTENT WITH CLAIM OF METHODOLOGICAL NEUTRALITY The statement that a regime of PRIMARY RULES has DEFECTS, like the statement that these defects are REMEDIED by the introduction of a ROR and other secondary rules, is an EVALUATIVE CLAIM. The values relate to GUIDANCE OF CONDUCT, which means that they have a normative dimension However-- does not seem consistent with the DESCRIPTIVE-EXPLANATORY METHOD (i.e. SCIENTIFIC METHOD) that the descriptive categories adopted by a particular theory should be based on EVALUATIVE JUDGMENTS of this kind
PERRY: 3. HART's stance of SOCIAL FACT is NOT METHOD-- JUST A THESIS OF HIS SUBSTANTIVE CLAIM HART DEFENDS CONCEPTUALISATION OF LAW THAT CHARACTERISES LAW IN TERMS OF 3 TYPES OF RULE IN TURN-- CHARACTERISES BY REFERENCE TO VARIOUS KINDS OF SOCIAL FACT HOWEVER-- CLAIM THAT LEGAL THEORY= DESCRIPTIVE THUS NOT METHODOLOGICAL IN NATURE IT IS SIMPLY A CLAIM ABOUT THE CONTENT OF THE CONCEPT OF LAW-- HE WILL PICK OUT SOCIAL PRACTICES PURELY BASED ON FACTUAL CRITERIA, NOT E.G. MIXED MORAL AND FACTUAL
PERRY: HART SEEMS TO ADOPT HYBRID BETWEEN HERMENEUTIC INQUIRY (HOW PARTICIPANTS REGARD THEIR OWN BEHAVIOUR) AND DESCRIPTIVE-EXPLANATORY (NOT ACTUALLY TAKING PART, BUT OBSERVING) BUT, DESCRIPTION TAKES MANY FORMS YES-- CAN DESCRIBE IN MORE OR LESS VALUE NEUTRAL FASHION. BUT THIS VALUE NEUTRAL FASHION CAN COME ABOUT IN DIFFERENT WAYS--- E.G. HOW GENERAL YOU ARE, AND YOUR DEGREE OF SELECTIVITY (WHAT YOU OMIT TO RECORD) A SET OF DESCRIPTIVE STATEMENTS BY ITSELF IS NOT A THEORY OF ANY KIND. MUST OBSERVE WITH A PARTICULAR PURPOSE IN MIND. HART'S PURPOSE-- FOCUS ON PHENOMENON OF ACCEPTANCE in order to "elucidate" or "clarify" concepts participants use
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