Copyright Dennis Patterson 2006 The Methodology Debate in Analytic Jurisprudence What is At Stake and What Comes Next Dennis Patterson Rutgers University Law and Philosophy

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-de- sac and heading for the debate hall.