Friday, October 30, 2015

Conceptual Jurisprudence Isn’t, Says a Former Leading Proponent

Who wrote this?
A more general defect in my early invocation in jurisprudence of linguistic philosophy was a failure to make clear that understanding, however sophisticated or profound of the workings of language could only yield significant results for jurisprudence where difficulties had arisen from a failure to identify the way in which some particular use of language deviated from some tacitly accepted paradigm, or where radically different forms of expression were mistakenly assimilated to some familiar form….The methods of linguistic philosophy…are not suitable for resolving or clarifying those controversies which arise, as many of the central problems of legal philosophy do, from the divergence between partly overlapping concepts reflecting a divergence of basic point of view or values or background theory, or which arise from conflict or incompleteness or legal rules. For such cases what is needed is first, the identification of the latent conflicting points of view which led to the choice or formation of divergent concepts, and secondly, reasoned argument directed to establishing the merits of conflicting theories, divergent concepts or rules, or to showing how these could be made compatible by some suitable restriction of their scope.
The opening sentence is a giveaway. This is, of course, Hart reflecting back on his earlier work in the Introduction to Essays in Jurisprudence and Philosophy. This passage is not as clear as one would hope, but as I read him, it seems clear that in 1983 Hart thought it was a “defect” of his earlier work that it did not recognize that many jurisprudential disputes arise as a result of “the divergence between partly overlapping concepts reflecting a divergence of basic point of view or values or background theory.” That, not to put a fine point on it, a central element in Fuller and Dworkin’s critiques of Hart.

Two possible responses: First, Hart says this in the context of discussing his pre-1958 works, so perhaps he did not intend here to concede anything to Fuller and Dworkin. But I cannot see how any of his post-1958 works (including especially The Concept of Law) addressed this concern. Second, one can think that the earlier, purer Hart is better than the Hart who adulterated his views in response to criticism. Some people have found the 1961 vintage is so much superior to what came later, that they went on citing the first edition of The Concept of Law when referring to the main text of the book, even though its text is identical to that of the second edition. They begrudgingly cited the second edition only when absolutely necessary, i.e. when referring to the unloved Postscript. Since the second edition was slightly differently paginated from the first, this habit was not just an odd, it actually made things difficult for those who wanted to trace those citations.

In any case, an interesting passage, and one that I have not seen discussed.

No comments:

Post a Comment