Theory Tenets Objectives Response Response to the Response

A. GENERAL -The main insight of legal positivism, that - Dworkin’s core idea is that the law -Dworkin radicalized his views
JURISPRUDENCE the conditions of legal validity are consists of rules only. about these issues, striving to
determined by social facts, involves two ground his anti-positivist legal
a. Conditions of separate claims which have been labeled - law is partly determined by legal theory on a general theory of
Legal Validity The Social Thesis and The Separation Thesis. principles. The distinction between rules interpretation, and emphasizing
and principles is a logical one. Rules, law’s profound interpretative
-The Social Thesis asserts that law is, Dworkin maintained, apply in an “all or nature. Despite the fact that
profoundly, a social phenomenon, and that nothing fashion.” If the rule applies to the Dworkin’s interpretative theory
the conditions of legal validity consist of circumstances, it determines a particular of law is extremely sophisticated
social—that is, non-normative—facts. legal outcome. If it does not apply, it is and complex, the essence of his
- The Separation Thesis is an important simply irrelevant to the outcome. On the argument from interpretation
negative implication of the Social Thesis, other hand, principles do not determine can be summarized in a rather
maintaining that there is a conceptual an outcome even if they clearly apply to simple way.
separation between law and morality, that the pertinent circumstances. Principles -The main argument consists of
is, between what the law is, and what the provide judges with a legal reason to two main premises.
law ought to be. The Separation Thesis, decide the case one way or the other, and A. The first thesis maintains that
properly understood, pertains only to the hence they only have a dimension of determining what the law
conditions of legal validity. It asserts that the weight. That is, the reasons provided by requires in each and every
conditions of legal validity do not depend on the principle may be relatively strong, or particular case necessarily
the moral merits of the norms in question. weak, but they are never “absolute.” involves interpretative
What the law is cannot depend on what it Such reasons, by themselves, cannot reasoning.
ought to be in the relevant circumstances. determine an outcome, as rules do. B. second premise,
interpretation always involves
evaluative considerations. More
precisely, perhaps,
interpretation is neither purely a
matter of determining facts, nor
is it a matter of evaluative
judgment per se, but an
inseparable mixture of both.
-Clearly enough, one who
accepts both these theses must
conclude that the Separation
Thesis is fundamentally flawed.
If Dworkin is correct about both

b. Normativity of Throughout human history the law has been
Law known as a coercive institution, enforcing its
practical demands on its subjects by means
of threats and violence. This conspicuous
feature of law made it very tempting for
some philosophers to assume that the
normativity of law resides in its coercive
aspect. Even within the legal positivist
tradition, however, the coercive aspect of
the law has given rise to fierce
controversies. Early legal positivists, such as
Bentham and Austin, maintained that
coercion is an essential feature of law,
distinguishing it from other normative
domains.
John Austin famously maintained that
each and every legal norm, as such, must
comprise a threat backed by sanction. This
involves at least two separate claims: In
one sense, it can be understood as a thesis
about the concept of law, maintaining that
what we call “law” can only be those
norms which are backed by sanctions of
the political sovereign. In a second, though
not less problematic sense, the intimate
connection between the law and the
threat of sanctions is a thesis about the
normativity of law.
- It is a reductionist thesis about law’s
normative character, maintaining that the
normativity of law consists in the
subjects’ ability to predict the chances of
incurring punishment or evil and their
presumed desire to avoid it.
- Hans Kelsen maintained that the
monopolization of violence in society, and
the law’s ability to impose its demands by
violent means, is the most important of
law’s functions in society.
theses, it surely follows that
determining what the law
requires always involves
evaluative considerations.
- H.L.A. Hart and Joseph Raz,
deny this, maintaining that the
coercive aspect of law is much
more marginal than their
predecessors assumed.
- Hart’s fundamental objection
to Austin’s reductionist account
of law’s normativity is, on his
own account, “that the
predictive interpretation
obscures the fact that, where
rules exist, deviations from
them are not merely grounds for
prediction that hostile reactions
will follow…. but are also
deemed to be a reason or
justification for such reaction
and for applying the sanctions”
- American Legal Realists
claimed that our ability to
predict the outcomes of legal
cases on the basis of the rules of
law is rather limited. Thus, Legal
Realism was mainly an attempt
to introduce the social sciences
into the domain of
jurisprudence for predictive
purposes. Legal Realism paid
 very little attention to the
question of the normativity of
law, that is, to the question of
how the law does guide
behavior in those cases in which
it seems to be determinate
enough.

- Joseph Raz’s theory of

authority, which also shows
how such a theory about the
normativity of law entails
important conclusions with
respect to the conditions of legal
validity (Raz 1994). The basic
insight of Raz’s argument is that
the law is an authoritative social
institution. The law, Raz claims,
is a de facto authority.
B. METHODOLOGY When it comes to the methodology of
OF JURISPRUDENCE jurisprudence, we find two main issues.
While one is not directly concerned with
normativity, the second is.

-The first asks about the aims and success

criteria for philosophical theories about the
nature of law:
What is the target that first-order theories
of law aim to capture, and when do they
succeed in doing so?

-The second asks about the role of

evaluation in jurisprudential methodology:
Are first-order legal theories inherently or
necessarily evaluative or can they be purely
descriptive?
a. The Target of a - The first important class of methodological
Theory of Law questions in jurisprudence concerns the
target of first-order theories of law—that is,
what phenomenon such theories aim to
provide an account of.

1. Conceptual This approach is often associated with Hart’s - aims to provide an -If, in light of this argument, we are to -A deeper worry about all forms
Analysis View influential work, The Concept of Law (1994). account of the conditions abandon the idea that first-order legal of conceptual analysis is the
under which the target theories are semantic theories, there are question of why we should care
- On conceptual analysis views, theories of concept of law (or one of two obvious ways to proceed. about anybody’s concept of law
law aim to capture the concept of law and its cognates) applies. -First, one might simply abandon the idea in the first place (Marmor 2013,
they succeed to the extent that they provide that legal theories are exercises in 216–217; Leiter 2007, 177–79).
a coherent account of the relevant data conceptual analysis. - Second, if one After all, as philosophers, it
about that concept and related concepts. wants to still say that legal theories are in seems that it is the nature of
the business of analyzing the concept of law itself that we care about
- Perhaps the biggest source of concern in the law, then the obvious response to the understanding (Raz 2004, 7, 10).
present context is that this sort of view fuels semantic sting argument is to deny that - Accordingly, one might think
a version of Dworkin’s “semantic sting” concept possession just is a matter of that what theories of law aim to
argument: Suppose legal theories aim to knowing how the word “law” in its capture is not anybody’s
capture the concept of law and that concept juridical sense is to be applied. This concept of law in particular, but
possession just is a matter of knowing when suggests a second, richer form of rather the nature of law itself.
the word “law” applies. If so, the argument conceptual analysis that legal theorists - Still, one might wonder
runs, legal theories cannot explain might be engaged in. whether this route to
disagreement about the grounds of law, that investigating the nature of law
is, about the conditions of legal validity. After itself would be the most
all, if legal theories are in this way semantic effective strategy to employ,
in nature, then disagreement about what the given its indirectness. Why limit
grounds of law are must boil down to ourselves to asking questions
disagreement about when the word “law” about concepts if law can be
applies—at least assuming the parties to the studied directly?
disagreement are not merely talking past one A very different response would
another. be to adopt a Platonist account
- Accordingly, there must be something of concepts, according to which
wrong with construing legal theories as they are not mental
mere semantic accounts of when the word representations at all, but rather
“law” applies. abstract objects akin to the

- adopts a more skeptical stance towards the
2. Reductionist methodology of conceptual analysis and
and Naturalistic takes theories of law to be in the business of
views offering a reductive explanation of law itself,
not some concept of it.
a. Reductionist views
- reductionist views take it that illuminating
the nature of law is a matter of explaining
what the law is, and how it operates, in
terms of more foundational facts. As a
result, first-order theories of law succeed to
the extent that they accomplish this in an
explanatorily powerful way (Marmor 2013).
b. naturalistic views
--Brian Leiter has been the most prominent
defender of this position (Leiter 2007). Like
other reductionist views, naturalized
jurisprudence takes the aim of legal theories
to be to explain the nature of law itself (not
anybody’s concept of it). But what is
characteristic of naturalized jurisprudence is
that it also insists that a purely empirical
methodology should be used in doing so.
objects of mathematical inquiry.
The concept of law, then, would
be the abstract object one must
grasp in order to think about
law. Accordingly, it is this
abstract object—the concept of
law—that philosophers care
about and aim to investigate
using the method of conceptual
analysis (cf. Bealer 1998).
The goal of a first-order - This methodological view, however, - In response, one route that
theory, on this sort of raises questions about why the legal positivists who want to be
view, is to offer philosopher should study only judicial reductionists could take is to
a metaphysical behavior and not something else. More maintain that legal facts really
reduction of law: that is, generally, the naturalist owes an account are descriptive in nature, not
to show that the of what features of law are most in need genuinely normative. In
phenomenon of law is of explication and why. particular, such positivists might
actually constituted by, claim that facts about what legal
and fully reducible to, obligations we have simply are
some other more descriptive facts about what the
foundational type of law holds that we ought to do—
phenomenon (in the way not normative facts about what
that chemistry could in we really ought to do (Shapiro
principle be reduced to 2011).
particle physics).
 - Leiter argues that our intuitions about law
are too unreliable to be afforded much
epistemic weight (as others have argued
with respect to intuitions in other areas of
philosophy). On Leiter’s view, philosophers
generally should aim to unpack the
“concepts that have been vindicated by
their role in successful explanation and
prediction of empirical phenomena”.

3. MetaNormative - which renders it continuous with other

Inquiry view philosophical fields like metaethics.
- developed by Plunkett and Shapiro (2017)
takes general jurisprudence to be just
another branch of metanormative inquiry.
The latter kind of inquiry as a general matter
aims to explain how normative thought,
talk, and entities (if any) fit into reality.
Metaethics is another branch of
metanormative inquiry, which focuses on
how ethical thought, talk and entities fit into
reality.
- the subject of inquiry in general
jurisprudence would be legal thought, talk
and entities (if any), and the aim of the field
would be to explain how such thought and
talk about law—as well as legal structures
and legal properties (if any)—are best
accounted for in one’s general philosophical
view of reality. On this view, jurisprudential
inquiry would be continuous with—and
methodologically quite similar—to the work
done in other areas of normative inquiry,
especially ethics and aesthetics.
4. Prescriptive - prescriptive view takes it that the proper
View aim of a legal theory is to specify a
substantive conception of law that it would
be especially desirable for people to adopt.
- Accordingly, if jurisprudence is chiefly a
prescriptive endeavor, then theories of law
might end up being radically revisionist in
nature.
5. Constructive - associated with Dworkin’s work, takes it
Interpretation that legal theories are in the business of
offering a constructive interpretation of
legal practice.
- Dworkin’s view takes it that:
(i) the target of a first-order theory of law
is existing legal practice and
(ii) these theories succeed to the extent that
they offer a defensible constructive
interpretation (in Dworkin’s sense) of that
practice.
- According to the constructive
interpretation view, the aim of a first-order
theory of law is not to analyze any concept
or to reduce legal facts to other more
foundational facts. Rather, the aim of a legal
theory is to reconstruct the behavior and
self-understandings of participants in legal
practice and, moreover, to do so in a way
that casts this practice in its best moral light.
MacCormick argues that there are
compelling normative arguments in favor
of adopting a positivist conception of law.
In particular, he suggests that values like
autonomy and freedom of conscience
demand that the law not regulate with a
heavy hand “the sphere of aspirational
values, of duties of self-respect and of
duties of love,” a sphere that concerns
“questing for the good beyond duty, or
for the right lines of development of a
self, or for the proper regard to bestow
upon one’s family, friends or neighbors”
- One concern about the constructive
interpretation view of methodology in
jurisprudence is that it may not be in
genuine competition with either the
conceptual analysis or reductive views of
methodology. After all, one sort of
project is to explain what law actually is
and how it operates.
-some have argued that the
constructive interpretation view
engages with the other
methodological views
mentioned above only if it
denies what they assert: viz.,
that legal theories attempt to
provide an explanation (perhaps
of some particular kind—e.g.,
reductive) of the actual nature
of law (or perhaps our concept
of it).
- The thought would be to claim
that law is a normative practice,
and normative facts cannot be
reduced to purely non-
normative facts without losing
something essential.