Transcript The Methodology Debate in Analytic Jurisprudence

The Methodology
Debate in Analytic
Jurisprudence
What is At Stake and What Comes Next
Dennis Patterson
Rutgers University
Law and Philosophy
Copyright Dennis Patterson 2006
The Grand Opposition
Positivism
 H.L.A. Hart
 Descriptive
 The Concept of Law (1961)
 Two principal features of Concept:
 Account of the nature of law (Chs. 1-6)
 An account of adjudication (Ch. 7)
 Rule of Recognition
Interpretivism
 Ronald Dworkin
 Law is an “Interpretive” Concept
 Meaning – Point/Purpose
 Coercive State Action
 Jurisprudence is “necessarily”
normative
Hart’s Postscript
1994
 Hart answers Dworkin:
“We’re doing different things”
 Dworkin’s Retort:
“We’re doing the same thing and
you are doing it incorrectly”
 Lines are Drawn: Descriptivism vs
Interpretivism
For the Descriptivists
Hart
Soft Positivists
Jules Coleman
Hard Positivists
Joseph Raz
A Middle Position
Julie Dickson
Indirectly Evaluative
Jurisprudence
For the Interpretivists
 Dworkin
 Stephen Perry
The Methodology Debate –
Two Approaches to
Jurisprudence
 Positivism – Hart/Coleman/Raz/
Indirectly Evaluative - Dickson
 Interpretivism – Dworkin/Perry
Changing the Terms
of the Debate
 Brian Leiter
 Legal theorists have been having the
wrong debate about Methodology.
 Ditch the Hart/Dworkin debate.
 Get rid of Conceptual Analysis and
appeal to “intuitions”.
Naturalism: The Threat to
Traditional Jurisprudence
 W.V.O.Quine
“Two Dogmas of Empiricism”
 Published 1951
 Attacking the “analytic/synthetic
distinction”
 Analytic – A statement true in virtue
of the meaning of the terms
(ascertainable a priori)
“Two Dogmas of Empiricism”
Synthetic – A statement true in
virtue of facts (ascertainable a
posteriori, ie, empirically)
Rejecting the role of philosophy as
the purveyor of a priori truths.
 Reduce philosophy to science
(both natural and social)
If Quine is right, so what?
 Conceptual Analysis – depends on
the analytic/synthetic distinction.
 Traditional debate about “The
Nature of Law” is all about a priori
truths.
 If there are no a priori truths, there
is no debate about what those
truths are.
Leiter (2003)
“ …if analytic statements are gone, then
so too is conceptual analysis: since any
claim of conceptual analysis is
vulnerable to the demands of a posteriori
(i.e. empirical) theory construction,
philosophy must proceed in tandem with
empirical science, not as the arbiter of its
claims, but as a reflective attempt at
synoptic clarity about the state of
empirical knowledge.”
Is Quine Right?
 Naturalism is the dominant methodological view in
analytic philosophy.
 But was Quine right?
 Grice and Strawson - two smart guys – said “no”
 The focus of Quine’s attack was narrow: there is
no “the” analytic/synthetic distinction. There are
many – Quine focused on only one (that of
Carnap, his teacher)
If Quine is Wrong, then Why
am I Talking about this?
 It’s not about “conceptual analysis”
writ large, it’s about armchair
speculation about a priori truths.
 Philosophy has a poor record of
revealing a priori truths.
 Legal philosophy is in a cul-de-sac.
Where do we go from here?
 Leiter’s challenge is serious.
 But naturalism is deeply flawed.
 Legal philosophers need to learn
philosophy of language, mind and
metaphysics to meet the challenge of
naturalism.
 But it’s not just about meeting the
challenge of naturalism.
Methodology and Conceptual
Analysis: Beyond Quine
 Beyond the bounds of sense
“All understanding of a rule is interpretation.”
 Analysis as ‘redescription’
- Hart on Primary and Secondary Rules
- Economic analysis of law
(Negligence, duty and cheapest cost avoider)
Coleman – Theory as a
clarifying tool
Presuppositions of tort law (corrective justice).
“The principle of corrective justice--that each of us
has a duty to repair the wrongful losses for which we
are responsible--renders the content of each
proposition and the relationship of each to the other
coherent, mutually supporting and transparent. Thus
at the same time that tort law more fully specifies the
content of corrective justice, corrective justice
explains tort law. Thus, the practice of principle. “
Conclusions
 Analytic jurisprudence is in transition.
 The transition is driven by developments
in analytic philosophy.
 The debate over the “nature of law” is
just one example of this transition.
 Legal philosophy is leaving the cul-desac and heading for the debate hall.