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Legal Theory and Legal Doctrinal Scholarship

Published online by Cambridge University Press:  20 July 2015

Mátyás Bódig
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The essay is an attempt to clarify some issues concerning the point of doing conceptual legal theory. It provides a reassessment of the relationship between conceptual legal theory, legal doctrinal scholarship and the legal practice. The analysis concentrates on what may be termed the ‘mainstream’ discourse on conceptual legal theory (characterised by authors like Hart, Raz, Dworkin, Finnis), and depicts the mainstream discourse as functionally connected to legal doctrinal scholarship. The essay argues that a more open commitment to reflecting current problems of legal doctrinal scholarship would make the position of mainstream conceptual legal theory more intelligible. If it wants to maintain its position as a complex theoretical discourse, mainstream conceptual legal theory must take direct responsibility for serving the epistemic needs of legal doctrinal scholarship – by way of providing conceptual and methodological foundations for it. Conceptual legal theory can make a contribution to doctrinal debates by relying on its ability to assess competing doctrinal claims in light of the epistemological characteristics of the legal doctrines in a modern legal system. The mainstream conceptual discourse can also have a vital role in in making sense of the external challenges to legal doctrinal scholarship. Such cionsiderations lead to a criticism of Hartian methodological legal positivism: it is blamed for becoming oblivious of the ways in which the mainstream conceptual discourse is parasitic on the conceptual tensions encountered or even generated by doctrinal scholarship.

Keywords

conceptual legal theorylegal doctrinal scholarshiplegal doctrinedoctrinal trainingnormative discoursemethodological legal positivism
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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 2 , July 2010 , pp. 483 - 514
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Copyright © Canadian Journal of Law and Jurisprudence 2010 

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References

I am grateful for comments from Thomas Bustamante, Péter Cserne, Tamás Gyoörfi, Dimitrios Kyritsis, Claudio Michelon, Veronica Rodriguez-Blanco and Nigel Simmonds on earlier drafts of this paper. I am also grateful to the participants of the research seminar I held in November 2009 at the University of Edinburgh for discussing with me an earlier version of my argument. Also, I thank the two anonymous reviewers for CJLJ for their comments which helped improve the article in a number of ways.

1. Admittedly, this aspect of my analysis drew inspiration from Nigel Simmonds’ views on the legal theoretical significance of doctrinal scholarship. See Simmonds, Nigel, Law as a Moral Idea (Oxford: Oxford University Press, 2007) at 164–68.Google Scholar

2. See Bix, Brian, Jurisprudence: Theory and Context (London: Sweet and Maxwell, 1999) at 17.Google Scholar

3. For my account of ‘substantive legal theory,’ see Bódig, Mátyás, Jogelmélet és gyakorlati filozófia: Jogelméleti módszertani vizsgálódások (Miskolc: Bíbor, 2004) at 435–37.Google Scholar

4. See, e.g., MacCormick, Neil, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford: Oxford University Press, 2005).CrossRefGoogle Scholar

5. See, e.g., Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).Google Scholar

6. Much of constitutional theory falls into this category. See, e.g., Dworkin, Ronald, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996)Google Scholar. But my favourite example for this kind of substantive legal theory is Allan, T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001).Google Scholar

7. See, e.g., Hart, H.LA. & Honoré, Tony, Causation in the Law, 2nd ed. (Oxford: Clarendon Press, 1985)CrossRefGoogle Scholar. Honoré, Tony, Responsibility and Fault (Oxford: Hart, 1999).Google Scholar

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9. As terms like ‘discourse’ and ‘discursive’ are used in many senses, it may be useful to provide here a clarifying note. By ‘discourse,’ I mean the totality of linguistic usages attached to a given social practice. I talk of the ‘professional discourse of lawyers,’ the ‘legal theoretical discourse’ or the ‘mainstream conceptual discourse’ in this sense in this essay. ‘Discursive’ simply means pertaining to discourse here.

10. Hence there are attempts to account for the conceptual features of law, outside the confines of the mainstream discourse, that may be completely unaffected by my diagnosis. For accounts of law (full of conceptual claims) that fall outside the scope of my analysis, see, e.g., Bankowski, Zenon, Living Lawfully (Dordrecht: Kluwer, 2001)CrossRefGoogle Scholar. Pokol, Béla, The Concept of Law: The Multi-layered Legal System (Budapest: Rejtjel, 2001).Google Scholar

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13. See Dworkin, Ronald, ‘The Model of Rules’ (1967) 35 U. Chicago L. Rev. 14 CrossRefGoogle Scholar. Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978) at chs. 2–3 Google Scholar. Hart, H.L.A., ‘Comment [on Dworkin]’ in Gavison, Ruth, ed., Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987) 35.Google Scholar Hart, H.L.A., ‘Postscript’ in Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) 238 Google Scholar. Ronald Dworkin, supra note 8.

14. See Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).Google Scholar

15. See Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979)CrossRefGoogle Scholar. Raz, Joseph, ‘Hart on Moral Rights and Legal Duties’ (1984) 4 Oxford J. Legal Stud. 123.CrossRefGoogle Scholar

16. See Waldron, Jeremy, ‘Normative (or Ethical) Positivism’ in Coleman, Jules, ed., Hart’s Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001)Google Scholar. MacCormick, Neil, ‘A Moralistic Case for A-Moralistic Law?’ in Campbell, Tom D., ed., Legal Positivism (Aldershot, UK: Ashgate/Dartmouth, 1999).Google Scholar Tom D. Campbell, The Legal Theory of Ethical Positivism (Aldershot, UK: Ashgate/Dartmouth, 1996). On methodological positivism, see section 7 below.

17. Just a sample from the vast literature: Hart, supra note 11. Coleman, Jules, ‘Negative and Positive Positivism’ in Cohen, Marshall, ed., Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1983) 28 Google Scholar. MacCormick, Neil, ‘Natural Law and the Separation of Law and Morals’ in George, Robert P., ed., Natural Law Theory (Oxford: Clarendon Press, 1992) 105 Google Scholar. Postema, Gerald J., ‘The Normativity of Law’ in Gavison, Ruth, ed., Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987) 81 Google Scholar. Lyons, David, Moral Aspects of Legal Theory: Essays on Law, Justice and Political Responsibility (Cambridge: Cambridge University Press, 1993)CrossRefGoogle Scholar. Soper, Philip, The Ethics of Deference: Learning from Law’s Morals (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar. Gardner, John, ‘Legal Positivism: 51⁄2 Myths’ (2001) 46 Am. J. Juris. 199 CrossRefGoogle Scholar. Kramer, Matthew H., Where Law and Morality Meet (Oxford: Oxford University Press, 2004).Google Scholar

18. See Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 1–13.Google Scholar

19. This fact was taken into consideration by Hart. See ibid. at 2-3. What I mean here is that people tend to know what courts are for, what the basic practical implications of litigation are (what can be at stake in a judicial decision), they know how statutes can make a practical difference, when it is necessary to hire a lawyer, what it means to be obligated by a contract, etc. It is all part of the basic social knowledge or the set of social skills that enables people (with normal cognitive capacities) to lead their lives, pursue their goals, mind their business, and handle a variety of practical challenges in a society where legal institutions operate.

20. It does not mean that only the law gives rise to conceptual theoretical discourses. It seems to me that most of what I say about law in this section could be applied (mutatis mutandis) to religion and politics.

21. We make good use of a theoretically enlightened explanation by an educated expert when we realize that we have no idea what a ‘quantum,’ a ‘quark,’ a ‘stem cell,’ an ‘autopoietic system’ or a ‘collateralized debt obligation’ is, and, for any reason, we would like to know. And when the expert provides an abstract explanation (as opposed to involving us in an activity that helps develop a practical understanding), she provides theoretical guidance.

22. In respect of the academic community, the ‘inclination to play safe’ in controversies can be taken as a sociological fact. See Becher, Tony & Trowler, Paul R., Academic Tribes and Territories: Intellectual Enquiry and the Culture of Disciplines, 2nd ed. (Buckingham: Society for Research into Higher Education—Open University Press, 2001) at 126–27.Google Scholar

23. When I use the term ‘conception’ here, many readers will think about Dworkin (and possibly Rawls). See Dworkin, Ronald, Law’s Empire (London: Fontana, 1986) at 90–96 Google Scholar. Rawls, John, A Theory of.Justice (Cambridge, MA: The Belknap Press, 1971) at 5–6 Google Scholar. It is not an accident: I find the Dworkinian attempts to attribute different but related functions to ‘concepts’ and ‘conceptions’ very useful. But I do not claim to follow him—mainly because of my objections to his views on the character of conceptual legal theory (and conceptual analysis). See Bódig, supra note 3 at 329-34.

24. Actually, it quite drastically reduces the number of people to whom conceptual legal theory can promise considerable epistemic gains. It seems to me that most people (and most lawyers) never develop a conception of law (or, at least, a sufficiently complete conception of law).

25. Some would certainly say that this may be true but it is not the real question for us. What really matters for conceptual legal theory is whether practitioners should ask questions about the nature of law. The next section, when dealing with the incongruence of legal theory and practice, will indicate why it is unlikely that turning the question into a normative one would lead to significantly different conclusions.

26. For a clear formulation of the issue, see Moore, Michael S., ‘Law as a Functional Kind’ in George, Robert P., ed., Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992).Google Scholar

27. For this reason, I do not have much hope for the efforts to find a mission for legal theory in helping the practitioners to develop a reflective attitude, viz., to lead an ‘examined life.’ For an example of such an effort, see Coleman, Jules: ‘Legal Theory and Practice’ (1995) 83 Geo. L.J. 2579 at 2587-88.Google Scholar

28. This is really obvious in the case of Bentham and his distinctive kind of positivism. For him, conceptual claims about law were in the service of an ambitious attempt to develop a new doctrinal framework for lawyers—based on his utilitarianism. See, e.g., Bentham, Jeremy, Of Laws in General (London: The Athlone Press, 1970)Google Scholar. See also Postema, Gerald J., Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986) at 403–39.Google Scholar

29. Bentham and Austin were early examples of theorists who deliberately applied this strategy in legal theory. For Bentham’s conceptual challenge against common law jurists, see Postema, ibid. at 286-301. But, of course, in philosophy, it has a very long history. Hobbes explicitly used conceptual arguments against jurists (like Coke) whose doctrinal views clashed with his. See Hobbes, Thomas, Leviathan (London: Dent, 1976) at ch. II.21.Google Scholar

30. This is something that Dworkin famously denies. See Dworkin, supra note 23 at chs. 2-3. But I think Dworkin is wrong in thinking that the argumentative character of law forces every practitioner to develop a reflective attitude towards law. The present section lays out my reasons for turning against Dworkin on this issue.

31. See Posner, Richard A., Law and Legal Theory in England and America (Oxford: Clarendon Press, 1996) at 2–10.Google Scholar

32. One can actually find legal cases in which conceptual claims played an important role. A handy example could be Prasad in Fiji. For an analysis, see Williams, George, ‘The Case that Stopped a Coup? The Rule of Law and Constitutionalism in Fiji’ (2001) 1 O.U.C.L.J. 73.Google Scholar

33. Here is a good example for such a claim—specified for English common law: ‘An elaborate system of precedent sets out to ensure not only that the law enjoys internal consistency in relation to each case but that it also benefits from an external consistency, with each case linked to relevant others in a pyramidic chain of decisions carrying different levels of authority.’ Gearty, Conor Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004) at 174.Google Scholar

34. ‘Of course the system has not always practised what it preaches.’ Ibid.

35. See ibid. at 175.

36. See Raz, Joseph, Ethics in the Public Domain (Oxford: Clarendon Press, 1994) at 298 Google Scholar. Raz concludes that all we can expect from law is ‘local coherence’—coherence of doctrine in specific fields. See ibid.

37. Fried, Charles, ‘Scholars and Judges: Reason and Power’ (2000) 23 Harv. J. L. & Pub. Pol’y 807 at 828.Google Scholar

38. See University of California Regents v. Bakke, 438 U.S. 265 (1978).Google Scholar

39. See MacIntyre, Alasdair, After Virtue, 2nd ed. (Notre Dame, IN.: University of Notre Dame Press, 1984) at 253 Google Scholar. It leads MacIntyre to argue against Dworkin that the function of the Supreme Court is not to adjudicate along the lines of a set of consistent principles but to ‘keep the peace between rival social groups adhering to rival and incompatible principles of justice by displaying a fairness which consists in even-handedness in its adjudications.’ Ibid.

40. See Brown v. Board of Education, 347 U.S. 483 (1954).Google Scholar

41. In fairness, we have to note that Dworkin is very much aware that Brown was not argued on the basis of coherent principles by the US Supreme Court. See Dworkin, supra note 23 at 29-30.

42. Even theorists would find it hard to agree with Alexy who hoped for a theoretical development that would eventually provide effective theoretical guidance to practitioners. ‘It would be enough if the investigations presented here could make a contribution to the foundation of a theory of rational argumentation—a theory which, it is hoped, will one day be so firmly grounded and so widely developed that it will not only clarify the character of legal science as a normative discipline but will also provide practical guidelines for the practicing lawyer.’ Alexy, Robert, A Theory of Legal Argumentation (Oxford: Clarendon Press, 1989) at 29.Google Scholar

43. The sense in which I talk of ‘normative discourse’ here is based on Edward Rubin’s analysis. See ‘What Does Prescriptive Legal Scholarship Say and Who is Listening To It: A Response To Professor Cohen’ (1992) 63 U. Colo. L. Rev. 731 at 735-36.

44. I take the term ‘strong internalism’ from Stephen Perry. See ‘Interpretation and Methodology in Legal Theory’ in Marmor, Andrei, ed., Law and Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press, 1995) 97 at 98Google Scholar. For my account of internalism, see Bódig, supra note 3 at 447-50. Probably, talking of an ‘internal point of view’ would sound more familiar to my readers. But that would cover both ‘strong’ and ‘modest internalism,’ and I need to be more specific.

45. Due to its focus on conceptual issues, the present analysis cannot go much beyond this abstract characterisation of legal doctrinal scholarship. But it may be useful to provide a couple of examples that shaped my perception of the character of legal doctrinal scholarship. For classical piece, see Chayes, Abram, ‘The Role of Judge in Public Law Litigation’ (1976) 89 Harv. L. Rev. 1281 CrossRefGoogle Scholar. Here are two more examples from my area of research: Gearty, supra note 33, Wabwile, Michael, ‘Re-examining States’ External Obligations to Implement Economic and Social Rights of Children’ (2009) 22 Can. J.L. & Jur. 407.Google Scholar

46. What I have in mind about the character of legal doctrinal scholarship can be elucidated by Mark Tushnet’s typology. When he speaks of legal scholarship, he distinguishes three forms of it: ‘traditional advocacy,’ ‘advocacy augmented with concepts drawn from non-legal fields,’ and the ‘study of law as a phenomenon.’ See Tushnet, Mark, ‘Legal Scholarship: Its Causes and Cure’ (1981) 90 Yale L.J. 1205 at 1208CrossRefGoogle Scholar. The first two categories cover what I mean by legal doctrinal scholarship. Traditional advocacy reflects the impact of professional demands upon the academy, and it has two standard variants: the case analysis and the policy description (ibid.). ‘Advocacy augmented with concepts from other fields’ has the same ambitions, but it does not believe that a proper analysis of legal problems can be provided within the framework of traditional doctrinal analysis. However, it believes that one can reach ‘objectively defensible results by relying on ideas that are drawn from fields in which scholars’ partisanship is not as apparent’ (ibid. at 1210). Law and Economics can be a primary example for the latter kind of scholarship.

47. I tend to think that this is where a number of American legal realists went wrong with their aspirations. They sought to replace traditional doctrinal scholarship with social sciences, hoping that that would enable them to give a more accurate account of the way the law actually works. See Duxbury, Neil, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995) at 82–93 Google Scholar. But social sciences can never be specified to a particular practice in the same way as legal doctrinal scholarship.

48. This makes clearer why I needed to use above the term, ‘strong internalism.’ The other (‘modest’) version of internalism, adjusts its terminology to the practice it seeks to understand but detaches itself from its value assumptions. A form of modest internalism figures in Hart’s methodological vision for legal theory. See, e.g., Hart, supra note 18 at 242-43.

49. At the same time, this is what makes doctrinal scholarship quite similar to theology. The theology of a religion is internal to a particular (religious) practice in pretty much the same sense.

50. See Gordon, Robert W., ‘Lawyers, Scholars, and the “Middle Ground”‘ (1993) 91 Mich. L. Rev. 2075 at 2097CrossRefGoogle Scholar. See also Sugarman, David, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in Twining, William, ed., Legal Theory and Common Law (Oxford: Basil Blackwell, 1986) 26 at 26.Google Scholar

51. See, e.g., Edwards, Harry T., ‘The Growing Disjunction between Legal Education and the Legal Profession’ (1992) 91 Mich. L. Rev. 34 at 37CrossRefGoogle Scholar. For a milder formulation of the same concern, see Hyatt, Wayne S., ‘A Lawyer’s Lament: Law School and the Profession of Law’ (2007) 60 Vanderbilt L. Rev. 385 at 387-88.Google Scholar

52. See Johnson, Alex M., ‘Think Like a Lawyer, Work Like a Machine: The Dissonance between Law School and Law Practice’ (1991) 64 S. Cal. L. Rev. 1231 at 1246.Google Scholar

53. Unfortunately, issues associated with the character of legal doctrines are rarely given adequate treatment in mainstream legal theory. We are more likely to learn more about them if we read the works of sociologists of law (and critical scholars). My treatment of these issues is also inadequate here. I would like to return to them on another occasion.

54. Cotterrell, Roger, The Sociology of Law: An Introduction 2nd ed. (London: Butterworths, 1992) at 2.Google Scholar

55. See ibid. at 42.

56. See Carlin, Jerome E., Lawyers on Their Own (New Brunswick, NJ: Rutgers University Press, 1962)Google Scholar. Bankowski, Zenon & Mungham, Geoff, Images of Law (London: Routlege and Kegan Paul, 1976).Google Scholar

57. ‘Much of practitioners’ most valuable practical knowledge is not in the least doctrinal. Some of it is intensely local knowledge—what the judges are like, which court clerks are cooperative, local procedural custom—and there is no point trying to teach that in law school. Some is craft knowledge, best taught in apprenticeship.’ White, J. J., ‘Letter to Judge Harry Edwards’ (1993) 91 Mich. L. Rev. 2177 at 2184-85.CrossRefGoogle Scholar

58. ‘They [most modern lawyers] would argue that, although doctrine supplies the language of legal— or rather, judicial—decisionmaking, it is not the major factor in deciding cases and that purely doctrinal scholarship is therefore of quite limited utility. Outside the restricted area of practice before the courts, which is only a small part of what actors in our legal system do, doctrine is even less useful.’ Gordon, supra note 50 at 2078.

59. See Fried, supra note 37 at 832.

60. Cf. Simmonds, supra note 1 at 164. Birks, Peter, ‘Editor’s Preface’ in Birks, Peter, ed., Pressing Problems in the Law, Volume 2: What are Law Schools For? (Oxford: Oxford University Press, 1996)Google Scholar. This claim can draw support from sociological analyses of the legitimizing function of academia in relation to professions. See, e.g., Abbott, Andrew: The System of Professions: An Essay on the Division of Expert Labor (Chicago, IL: Chicago University Press, 1988) at 53–54 and 184-85.CrossRefGoogle Scholar

61. I rely here on the Razian distinction between ‘theoretical’ and ‘practical’ authority. See, e.g., Raz, supra note 36 at 211-12.

62. Cf. Sugarman, supra note 50 at 27.

63. See Rubin, Edward L., ‘The Practice and Discourse of Legal Scholarship’ (1988) 86 Mich. L. Rev. 1835 at 1835.CrossRefGoogle Scholar

64. It is often noted that legal doctrinal scholarship has never been properly integrated into the social sciences. The main reason being that legal doctrinal scholarship is bound, by its very nature, to remain within the boundaries of the professional discourse (and the judicial discourse in particular). See ibid. at 1895. One can argue that legal education (and doctrinal training in particular) isolates legal scholars from the intellectual tendencies of social sciences. See Tushnet, supra note 46 at 1206.

65. See Sugarman, supra note 50 at 32-33.

66. Of course, not all practitioners are decision-makers (although it seems plausible to claim that all the characteristic jobs for professional lawyers are integrated into decision-making processes). But their institutionalized roles in an authoritative practice make their claims markedly different from the claims of scholars. See Fried, supra note 37 at 813. See also Rubin, supra note 63 at 1846.

67. Simmonds, supra note 1 at 164.

68. See Bódig, Mátyás, ‘A jog és az erkölcs közötti viszony a konceptuális jogelmélet szempontjából’ (2007) 2(2) Miskolci Jogi Szemle 5 at 9.Google Scholar

69. What I provide here is only a general, slightly vague indication of the vulnerability of legal doctrinal scholarship to methodological challenges. Probably, a more accurate clarification could be provided by an analysis of the sociological and epistemological profile of legal scholarship. That could show legal scholarship as a field where there is a low ‘people-to problem ratio’: researchers tend to cover a broad stretch of intellectual territory, and they are spread out thinly across a wide range of themes. See Becher & Trowler, supra note 22 at 106. Compared to the natural sciences, problems are not clearly demarcated: they are broad in scope and loose in definition. See ibid. at 184. As opposed to the natural sciences (where established methods tend to determine the choice of problems), the problems tend to determine the methods. See ibid. at 185. The research agenda for legal scholars is particularly susceptible to dictation by non-academic interests (government bodies, client groups). See ibid. at 179. These features all contribute to the specific conceptual tensions that surround legal doctrinal scholarship.

70. Tomlins, Cf. Christopher, ‘Framing the Field of Law’s Disciplinary Encounters: A Historical Narrative’ (2000) 34 Law & Soc’y Rev. 911 at 964CrossRefGoogle Scholar. See also Kalman, Laura: The Strange Career of Legal Liberalism (New Haven, CT: Yale University Press, 1996).Google Scholar

71. Rubin, Edward L., ‘Law and the Methodology of Law’ (1997) 1997 Wis. L. Rev. 521 at 521.Google Scholar

72. Cf. Bódig, supra note 3 at 465-69.

73. I admit that this connection is not properly substantiated without explaining how the mainstream conceptual discourse came to be associated with an interpretivist methodology (based on the idea that legal concepts are to be clarified by interpreting the way lawyers use them). But I will not provide that explanation here. For my earlier effort, see Bódig, Mátyás, ‘Interpretivism and Conventionalism: Contributions to the Critical Assessment of Contemporary Methodological Legal Positivism’ in Begum, Asifa, ed., Legal Positivism: Conceptual Approach (Hyderabad: Icfai University Press, 2008) at 155–58.Google Scholar

74. See Coleman, supra note 27 at 2586-87.

75. This is reflected in the legal realists’ attempts to push doctrinal education to the background in Law Schools—replacing it with courses in the social sciences. See Duxbury, supra note 47 at 82-93. There is a parallel story in Britain (from the 1970s) that concerns the open rivalry between advocates of ‘socio-legal studies’ and traditional doctrinal scholarship in legal academia. See Cownie, Fiona, Legal Academics: Culture and Identities (Oxford: Hart, 2004) at 49–58.Google Scholar

76. My ideas here run parallel to Unger’s concept of objectivism I agree with him that the ‘objectivist’ language of the professional discourse ex Presses more then just the belief that the authoritative legal materials allow for non-arbitrary legal decisions. There is a deeper layer here that concerns the role of law in maintaining social order: law is a vital social technique without which a modern and civilised society cannot be maintained. ‘Objectivism is the belief that the authoritative legal materials—the system of statutes, cases, and accepted legal ideas—embody and sustain a defensible scheme of human association. They display, though imperfectly, an intelligible moral order.’ Roberto Unger, Mangabeira, The Critical Studies Movement (Cambridge, MA: Harvard University Press, 1986) at 2 Google Scholar. The difference between Unger and me is that I actually believe that the law (as institutionalised in modern constitutional democracies) does embody a defensible scheme of human association.

77. See, e.g., Freeman, Alan D., ‘Truth and Mystification in Legal Scholarship’ (1981) 90 Yale L.J. 1229 especially at 1233.CrossRefGoogle Scholar

78. ‘[T]the conflict between objectivity and subjectivity cannot readily be confronted within the legal sphere without undermining liberal society itself.’ Mark Tushnet, supra note 46 at 1207. For Tushnet, doctrinal scholarship is defined by a tension concerning its claims to objectivity—and the fundamental inability to justify those claims.

79. ‘To anyone schooled in the realist tradition, a lawyer who sticks exclusively to doctrine-talk is a lawyer who is trying to avoid facing some important aspect of social reality.’ Gordon, supra note 50 at 2083.

80. I set aside an important aspect of the problem of objectivism here. As a discipline, legal scholarship appears as a form of ‘soft applied science,’ and this makes its objectivity-claims somewhat ‘shaky.’ Legal scholarship is predominantly functional, concerned with the enhancement of professional or semi-professional practice, and it is characterised by the extensive use of case studies. It creates a contrast to disciplines with better established claims to objectivity. See Becher & Trowler, supra note 22 at 36.

81. See, e.g., Carrington, Paul, ‘Of Law and the River’ (1984) 34 J. Legal Educ. 222 Google Scholar. Carrington thinks the critical scholars (the ‘nihilists’) have a duty to leave the Law Schools. They should not interfere with the education of future professionals. See ibid. at 227.

82. See, e.g., Luhmann, Niklas, Social Systems (Stanford, CA: Stanford University Press, 1995) at 331 Google Scholar-33 and 374-76.

83. Cf. Coleman, supra note 27 at 2588.

84. Of course, Dworkin and the Dworkinians are notable exceptions to this tendency. I take Nigel Simmonds as an exception as well.

85. One may read as a sign of this disjunction that the leading lights of mainstream conceptual legal theory stayed away from the debates on the disciplinary character of doctrinal scholarship in the 1980s and 1990s. (As my references show, my analysis owes a lot to those debates.)

86. I do not claim that Hart’s legal theory is the turning point. On the contrary, Hart more or less took for granted a vision of conceptual theory that must have had earlier representatives. Although I have not conducted adequate research on this issue, I would place my bet on Kelsen, and his original formulation of the ‘Pure Theory of Law’ in the 1920s and 1930s. In English, see Kelsen, Hans, Introduction to the Problems of Legal Theory (Oxford: Clarendon Press, 1992)Google Scholar. Kelsen sought to ‘create’ a field for a kind of legal theory (a ‘pure theory’) where the concerns of doctrinal scholars do not matter. It has to be noted however, that he is not a clear-cut case. Kelsen was an influential doctrinal scholar in constitutional law and international law. See, e.g., Kelsen, Hans, The Law of the United Nations (London: Stevens, 1951)Google Scholar. The relationship between his conceptual account and his doctrinal works raises complicated issues.

87. Pufendorf wrote five chapters on morality and the nature of moral action before undertaking to clarify what the law is. See Pufendorf, Samuel, De Jure Naturae et Gentium Libri Octo, Book 1 (New York: Oceana, 1964).Google Scholar

88. See von Savigny, Frederick Charles, Of the Vocation of Our Age for Legislation and Jurisprudence (New York: Arno, 1975).Google Scholar

89. See Duxbury, supra note 47 at 10-25.

90. Of course, there is another, very different story here: the emergence of critical legal theory. It is the story of theorists who took position outside the professional discourse, and turned against legal doctrinal scholarship as it is practised in modern legal systems.

91. I follow Leo Strauss on this point. See Natural Right and History (Chicago, IL: University of Chicago Press, 1953).

92. It is to be noted that the earlier approach did not prove to be deficient or fatally outdated. In fact, theories that make claims about law (legal rights, constitutions) on the basis of broader moral and political philosophical claims live on, and they may be very influential. You can find that approach in the works of modern political philosophers like Rawls. See Rawls, supra note 23 at ch. 4.

93. See Stammler, Rudolf, The Theory of.Justice (New York: A.M. Kelley, 1969).Google Scholar

94. See Vecchio, Giorgio del, General Principles of Law (Littleton, CO: R.B. Rodham, 1986).Google Scholar

95. See Fuller, Lon L., The Morality of Law, 2nd ed. (New Haven, CT: Yale University Press, 1969) at 96–106.Google Scholar

96. I mean a doctrinal claim like the ‘Radbruch formula.’ See Radbruch, Gustav, ‘Statutory Lawlessness and Supra-Statutory Law’ (2006) 26 Oxford J. Legal Stud. 1 at 7.CrossRefGoogle Scholar

97. See supra note 11 and accompanying text.

98. I took the term from Perry, Stephen R.. See ‘The Varieties of Legal Positivism’ (1996) 9 Can. J.L. & Jur. 361 Google Scholar. Perry, Stephen R, ‘Hart’s Methodological Positivism’ (1998) 4 Legal Theory 427 CrossRefGoogle Scholar. See also Bódig, supra note 73 at 158-61.

99. See Hart, H.L.A., Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) at 21.CrossRefGoogle Scholar

100. It does not mean that theorists are not supposed to rely on elements of philosophical reflection, but it does mean that philosophy is not to be seen as setting the issues for legal theory and the proper ways of dealing with them.

101. See Hart, supra note 18 at 239-41.

102. See ibid. See also Hart, ‘Comment,’ supra note 13 at 36-38. See also Coleman, Jules L., The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford: Clarendon Press, 2001) at 144.Google Scholar

103. See Hart, H.L.A., Essays on Bentham: Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982) at 265–67.CrossRefGoogle Scholar

104. See Hart, ‘Comment,’ supra note 13 at 38. See also Hart, supra note 18 at 239-40.

105. Cf. Nigel E. Simmonds, ‘The Nature of Law: Three Problems with One Solution’ [forthcoming]. For this reason, I tend to believe that the ‘limited domain thesis,’ or more exactly, the methodological positivist account of it (that insists that the boundaries of law are set by non-substantive, content-independent, conceptual criteria) captures the core ideas of methodological positivism better than either the ‘separability thesis’ or the ‘sources thesis.’ On the limited domain thesis see Postema, Gerald, ‘Law’s Autonomy and Public Practical Reason’ in George, Robert P., ed., The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996) at 82–83 Google Scholar. See also Schauer, Frederick, ‘The Limited Domain of the Law’ (2004) 90 Va L. Rev. 1909.CrossRefGoogle Scholar

106. Cf. Hart, supra note 18 at 107-08. A variation of this concern is emphasising the danger that, without the guidance of the right conceptual account, we will mistake what the law is with what we would like the law to be. See, e.g., Waluchow, Wilfrid J., Inclusive Legal Positivism (Oxford: Clarendon Press, 1994) at 17.Google Scholar

107. See supra note 17 and accompanying text.

108. See, e.g., Hill, H. Hamner, ‘H.L.A. Hart’s Hermeneutic Positivism: On Some Methodological Difficulties in The Concept of Law’ (1990) 3 Can. J.L. & Jur. 113 Google Scholar. Schwartz, Richard L., ‘Internal and External Method in the Study of Law’ (1992) 11 Law and Philosophy 179 CrossRefGoogle Scholar. Stephen Perry, supra note 44. Coleman, Jules, ‘Methodology’ in Coleman, Jules & Shapiro, Scott, eds., The Oxford Handbook of.Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) 311.Google Scholar

109. See Simmonds, supra note 105.

110. See Hart, supra note 18 at 89 and 107-08. Hart, ‘Comment,’ supra note 13 at 37.

111. This is reflected in Hart’s insistence (against Dworkin) that there is no quarrel between his conceptual account and substantive theories of law. See Hart, supra note 18 at 241. (Substantive theories of law would qualify as conceptions of law in my terminology.) For related reasons, Coleman emphasised that he had no theory about the content of law. See Coleman, supra note 102 at 165.

112. See Coleman, ibid. at 118.

113. See Bódig, supra note 3 at 483-86. My analysis was inspired by Postema in this respect. See Postema, Gerald J., ‘Jurisprudence as Practical Philosophy’ (1998) 4 Legal Theory 329 at 340-42.CrossRefGoogle Scholar

114. I do believe that this is a lesson to be learned from Finnis’ jurisprudential methodology. See Finnis, supra note 14 at 14-16.

115. The way Hartian descriptivism and its commitment to neutrality is challenged here may look familiar to some readers. It may seem to be in line with well-known critical attacks on Hart’s methodology. See, e.g., Finnis, supra note 14 at 6-16. Green, Leslie, ‘The Political Content of Legal Theory’ (1987) 17 Phil. of the Social Sciences 1 at 12-13Google Scholar, Perry, supra note 44 at 114. Perry, ‘Hart’s Methodological Positivism,’ supra note 98 at 428-31. Postema, supra note 105 at 80. Postema, supra note 113 at 356. Dworkin, supra note 8 at 20. For my analysis, see Bódig, supra note 3 at 103-18. But, in fact, my suggestions deviate from the usual way descriptivism is challenged. Usual arguments rely on the idea that there is something in the nature of law that makes it impossible for a purely descriptive analysis to clarify its conceptual features. Such arguments are often very plausible but ultimately depend on intricate philosophical points that are bound to remain matters of perennial controversy. And they have failed to make serious impact on methodological positivism so far. My alternative may get rid of some philosophical burden by relying on a functional analysis of discourses—its objections to Hartian descriptivism revolve around the need to adjust the methodological character of conceptual analysis to the epistemic concerns it responds to. If we accept that mainstream conceptual legal theory is connected by its adopted terminology to (inherently normative) conceptions of law, and that it has a pervasive impact on its methodological character, it is hard to maintain Hartian descriptivism.

116. I mean challenges like those posed by the advocates of Critical Legal Studies. See, e.g., Unger, Roberto Mangabeira, What Should Legal Analysis Become? (London, New York: Verso, 1996).Google Scholar