Analytical Jurisprudence versus Descriptive Sociology Revisited

Article excerpt

"Notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology; for the suggestion that inquiries into the meanings of words merely throw light on words is false. Many important distinctions . . . between types of social situations or relationships may best be brought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on a social context, itself often left unstated."1

"Decade after decade, Positivists and Natural Lawyers face one another in the final of the World Cup (the Sociologists have never learned the rules)."2

"It was Oliver Wendell Holmes who argued most influentially, I think, for . . . 'external' legal theory: the depressing history of social-theoretic jurisprudence in our century warns us how wrong he was."3

"No one in the current debate [over the concept of law] advocates a socialscientific concept of law that best promotes our systematic understanding of the emergence and maintenance of social structures4 . . . . Specifically, the concept of law that concerns the philosophers of law emphasizes the legal order, the set of prohibitions, requirements, and permissions that prevail in a society rather than the institutions of the legal regime that promulgate, enforce, and maintain the legal order. Phrased differently, the philosophical debate over the concept of law treats the legal order as a largely autonomous set of norms rather than as an artifact of functioning institutions of the governance structure."5

In this Essay, I revisit the protracted, inconclusive and sometimes unedifying debate prompted by H.L.A. Hart's famous claim in the Preface to The Concept of Law that the book might be regarded as a contribution not only to analytical jurisprudence but also to descriptive sociology. Drawing on my work as Hart's biographer,6 I shall review his own reflections on the claim, the arguments of legal theory to which his claim gave rise, and the reasons for thinking that the structure of his own theory prevented him from following through on the insights from which his claim proceeded. My motivation, however, is not primarily that of the biographer or the intellectual historian. Rather, this general interpretive question about Hart's work connects with some long-standing interests that have informed my own work in jurisprudence and criminal law theory. While bearing in mind Freud's view of the biographer's relationship with his or her subject as "a heady brew of Oedipal triumph and sibling rivalry,"7 I shall use my engagement with Hart's biography and intellectual legacy as the jumping-off point for a further examination of the relationship between the analytic and sociological approaches to legal theory, and of the relative contributions of philosophy, history, and the social sciences to our systematic understanding of the nature of law. Are legal philosophers like Dworkin justified in dismissing the achievements of sociotheoretic jurisprudence as "depressing," or in regarding sociological legal theorists, as Honoré suggests, as playing an entirely different game? Or, to put the question in Kornhauser's terms, does it make sense to seek a theory of the "legal order"-that is, prevailing legal norms-independent of a theory of the "legal regime," i.e., the institutions that generate and enforce those norms?

My argument will proceed in three stages. First, I shall examine Hart's original claim, interpreting it in light of the archival materials-particularly Hart's working notebooks-which were available to me as his biographer. I shall then consider the role of this dual ambition in Hart's later development of his own theory of law. In this stage I shall argue that the structural features of Hart's theory, as well as his insistence on the primacy, or even on the exclusive relevance, of analytic philosophical method to jurisprudence, prevented him from building upon his original insight that a theory of law might be taken as a genuine contribution to sociology. …


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