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Brian Z. Tamanaha - One of the best experts on this subject based on the ideXlab platform.

  • Socio-Legal Positivism and a General Jurisprudence
    Oxford Journal of Legal Studies, 2001
    Co-Authors: Brian Z. Tamanaha
    Abstract:

    H.L.A. Hart described his classic book, The Concept of Law, as a work in 'Descriptive Sociology', and his aspiration was to produce a general jurisprudence. He was less than successful in achieving both of these aims. This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. The label 'socio-legal positivism' reflects the fact that this article grafts the insights and orientation of socio-legal theory onto the core tenets of legal positivism. In the course of this reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified. A number of Hart's key insights are preserved, but resituated within a broader framework. And the relationship between legal positivism and natural law is altered dramatically. The result of this re construction is the foundation for the construction of a general jurisprudence that better fits the complex and variable situation of law in society today.

  • Socio-Legal Positivism and a General Jurisprudence
    SSRN Electronic Journal, 2000
    Co-Authors: Brian Z. Tamanaha
    Abstract:

    A general jurisprudence is an account of law and legal phenomena that is applicable to all societies. The benefits to be derived from constructing a general jurisprudence, according to its proponents, include achieving greater conceptual and analytical clarity, helping identify, describe, and understand law, developing a comparative framework for the study of law, and facilitating the moral evaluation and improvement of law. In his classic text, The Concept of Law (1961), H.L.A. Hart made the most successful attempt to achieve this objective. His reduction of law to the union of primary and secondary rules appeared to capture a fundamental truth about the basic elements that constitute law, and he applied this reduction to illuminate many longstanding jurisprudential issues. Hart's core analysis has survived relatively unscathed following almost forty years of critique. Its hardiness is strong evidence of its soundness. With the notable exception of Ronald Dworkin's engagement, much of the discussion today consists of refinements and modifications of Hart's theory, rather than outright repudiations. Yet few would say that we have achieved a general jurisprudence as a result of his work. This failure, despite its extraordinary success in other respects, suggests that his analysis contains debilitating, though perhaps hidden, limitations. I attempt to extend Hart's project one step further toward the achievement of a general jurisprudence. In the course of this analysis, I hold Hart, and myself, to the standards Hart set for himself, both in terms of what he proposed to be the measure of his concepts and in terms of his overall aim. He acknowledged that there was more than one way to conceptualize law. "If we are to make a reasoned choice between these concepts, it must be because one is superior to the other in the way in which it will assist our theoretical inquiries, or advance and clarify our moral deliberations, or both." Concepts that specify what law is are not are not right or wrong, or testable or falsifiable; they are more useful or less useful, and their use value is determined by the purpose for which the concept is constructed. The ultimate test for the approach I set out is whether it enhances our ability to describe, understand, and evaluate the legal phenomena. Hart identified his aim "to provide a theory of what law is which is both general and Descriptive." I argue that he was not general enough and not Descriptive enough. Despite his avowed intentions, I demonstrate, his concept of law was not capable of accounting for the many variations of legal phenomena in different cultures and times, and his account was not as value-neutral as he apparently thought. My adoption of the label socio-legal positivism signals that I encounter legal positivism from the direction of the social scientific study of law in the hope of more closely realizing Hart's self-described aim of producing a work in "Descriptive Sociology." My argument recognizes that Hart was substantially correct in his identification of primary and secondary rules (though wrong in some of the conditions he attached to them); however, his abstraction from state law provided too limited a base upon which to construct a general jurisprudence. I propose to shift to a higher level of generality, to place Hart's analysis under a broader umbrella and resituate it as one (key) part of what is a more expansive baseline. At this higher level of generality, old and settled understandings are shaken up and the legal landscape looks unusual in informative ways. Customary law and international law, for example, are no longer seen as pre-legal or as imperfect examples of state law. Moreover, two widely held theses - that efficacy is essential to the existence of law, and that law is institutional in nature - are challenged. Also interestingly, this higher level of generality gives rise to a legal positivist view of natural law, which suggests a new way of understanding the relationship between the two. I begin the argument by describing and criticizing Hart's concept of law, and the conditions he attached to primary and secondary rules. The vehicle for this critical analysis will be an exploration of the tensions contained within his simultaneous resort to conventionalism, essentialism and functionalism. The criticisms I press will lead directly into my reformulation and resituating of his concept of law. Thereafter, I will set out the basic elements of the socio-legal positivist approach to law, and indicate how this presents a new and interesting characterization of law well suited for a general jurisprudence. In the course of this analysis I will mention the work of other legal positivists when informative. However, the dominant focus will be on Hart's analysis, owing to his extraordinary influence, and to the fact that he has produced the most refined version of legal positivism to date.

Oscar Wilde - One of the best experts on this subject based on the ideXlab platform.

  • A Postmodern's Hart: Taking Rules Sceptically
    The Modern Law Review, 1995
    Co-Authors: Allan C. Hutchinson, Oscar Wilde
    Abstract:

    Although considered somewhat passe in the recherche circles of jurisprudential scholarship, H.L.A. Hart's view of law as basically a rule-applying activity remains the guiding theme of many legal practitioners and doctrinal scholars. The fact that his writings are no longer thought of as innovative or exceptional is only testament to their pervasive acceptance as part and parcel of what it is to be and think like a lawyer. Of course, this should not be surprising. His work was informed by the Austin-Wittgenstein imperative that good philosophy was simply making sense of people's daily linguistic practices: The Concept of Law was offered as 'an essay in Descriptive Sociology.'1 As such, his juristic studies recommended themselves to the practical mind of the common lawyer; there was an intuitive and reassuring fit between what lawyers thought they were doing and what they were told that they should be doing. The fact that Hart's uncluttered writings also justified and set to rest any qualms about the legitimacy of lawyers' and judges' roles in a liberal democracy also helped. Showcased by the elegant simplicity of his writing, Hart's elevation of legal common sense to the status of jurisprudential theory is both his greatest strength and his greatest weakness.2 Over thirty years after the publication of his majestic monograph, Hart has posthumously rejoined the debate over the nature of law and adjudication. In a new and previously unpublished Postscript, incorporated in a second edition, Hart responds to some of his old adversaries, like Lon L. Fuller, Ronald Dworkin and John Finnis. In the process he adds a new spark to the debate and stokes the flame of analytical jurisprudence. While the differences between their positions and his own are important, Hart contends that they are not as great or significant as many have come to believe. With characteristic equanimity and balance, Hart maintains that, shorn of exaggeration and caricature, there is much to recommend his adversaries: the problem lies not so much in their basic tenets, but in their hegemonic tendencies. Nevertheless, the postscript is a posthumous and unequivocal affirmation of Hart's own special brand of analytical jurisprudence that law and morality are best kept separate; that rules are the heart and soul of the legal process; and that adjudication has an inescapable element of choice.3

Allan C. Hutchinson - One of the best experts on this subject based on the ideXlab platform.

  • A Postmodern's Hart: Taking Rules Sceptically
    1995
    Co-Authors: Allan C. Hutchinson
    Abstract:

    Although considered somewhat passe in the recherche circles of jurisprudential scholarship, H.L.A. Hart's view of law as basically a rule-applying activity remains the guiding theme of many legal practitioners and doctrinal scholars. The fact that his writings are no longer thought of as innovative or exceptional is only testament to their pervasive acceptance as part and parcel of what it is to be and think like a lawyer. Of course, this should not be surprising. His work was informed by the Austin - Wittgenstein imperative that good philosophy was simply making sense of people's daily linguistic practices: The Concept of Law was offered as 'an essay in Descriptive Sociology. As such, his juristic studies recommended themselves to the practical mind of the common lawyer; there was an intuitive and reassuring fit between what lawyers thought they were doing and what they were told that they should be doing. The fact that Hart's uncluttered writings also justified and set to rest any qualms about the legitimacy of lawyers' and judges' roles in a liberal democracy also helped. Showcased by the elegant simplicity of his writing, Hart's elevation of legal common sense to the status of jurisprudential theory is both his greatest strength and his greatest weakness.

  • A Postmodern's Hart: Taking Rules Sceptically
    The Modern Law Review, 1995
    Co-Authors: Allan C. Hutchinson, Oscar Wilde
    Abstract:

    Although considered somewhat passe in the recherche circles of jurisprudential scholarship, H.L.A. Hart's view of law as basically a rule-applying activity remains the guiding theme of many legal practitioners and doctrinal scholars. The fact that his writings are no longer thought of as innovative or exceptional is only testament to their pervasive acceptance as part and parcel of what it is to be and think like a lawyer. Of course, this should not be surprising. His work was informed by the Austin-Wittgenstein imperative that good philosophy was simply making sense of people's daily linguistic practices: The Concept of Law was offered as 'an essay in Descriptive Sociology.'1 As such, his juristic studies recommended themselves to the practical mind of the common lawyer; there was an intuitive and reassuring fit between what lawyers thought they were doing and what they were told that they should be doing. The fact that Hart's uncluttered writings also justified and set to rest any qualms about the legitimacy of lawyers' and judges' roles in a liberal democracy also helped. Showcased by the elegant simplicity of his writing, Hart's elevation of legal common sense to the status of jurisprudential theory is both his greatest strength and his greatest weakness.2 Over thirty years after the publication of his majestic monograph, Hart has posthumously rejoined the debate over the nature of law and adjudication. In a new and previously unpublished Postscript, incorporated in a second edition, Hart responds to some of his old adversaries, like Lon L. Fuller, Ronald Dworkin and John Finnis. In the process he adds a new spark to the debate and stokes the flame of analytical jurisprudence. While the differences between their positions and his own are important, Hart contends that they are not as great or significant as many have come to believe. With characteristic equanimity and balance, Hart maintains that, shorn of exaggeration and caricature, there is much to recommend his adversaries: the problem lies not so much in their basic tenets, but in their hegemonic tendencies. Nevertheless, the postscript is a posthumous and unequivocal affirmation of Hart's own special brand of analytical jurisprudence that law and morality are best kept separate; that rules are the heart and soul of the legal process; and that adjudication has an inescapable element of choice.3

Il-tschung Lim - One of the best experts on this subject based on the ideXlab platform.

  • The imaginary as method. “Lyrical Sociology” as a heuristic of sociological description
    2019
    Co-Authors: Il-tschung Lim
    Abstract:

    The article draws on recent debates about empirical Sociology’s lack of imagination in order to champion the strength and virtue of a peculiar type of close, but also thin description as a central mode of social scientific observation. A case in point for the evocation of a Descriptive Sociology is Andrew Abbott’s neologism lyrical Sociology. Examining the lyrical-sociological approach, the article claims that the concept presents a distinct heuristic for the elicitation of a more colorful and vivid sociological imagination, namely, an emotional imagination in the empirical toolbox of the Descriptive sociologist. After the article considers the potential of description as a specific type of sociological representation and thus discusses the concept of the social imaginary from a methodological point of departure, the article suggests three vantage points to qualify the lyrical mode as a sociological Descriptive: First, it presents its central properties, thereby referring to the notion of a so-called “Descriptive turn”; second, it examines the heuristic value of lyrical Sociology. And third, the article juxtaposes lyrical Sociology and the compelling work of French-American anthropologist Didier Fassin to evaluate the potential but also the limits of lyricism within the sociological craft.

  • The imaginary as method. “Lyrical Sociology” as a heuristic of sociological description
    Österreichische Zeitschrift für Soziologie, 2019
    Co-Authors: Il-tschung Lim
    Abstract:

    Der Artikel nimmt Bezug auf eine jüngere Debatte in der Soziologie, die einen Mangel an methodologischer Kreativität und Originalität sowie ein Defizit an soziologischer Imagination und Einfallsreichtum in der Disziplin konstatiert. Vor diesem Hintergrund schlägt der Artikel vor, sich auf die soziologischen Qualitäten eines spezifischen Typs von Beschreibung zu besinnen, auf die Form einer eigentümlich „dünnen Beschreibung“, die im Vergleich zu den beiden anderen Typen soziologischer Beobachtung, Erklären und Interpretieren, zumeist abgewertet wird. Ein Paradebeispiel für einen solchen Beschreibungsmodus ist der Neologismus lyrische Soziologe des US-amerikanischen Soziologen Andrew Abbott. Der Artikel stellt Abbotts lyrischen Ansatz eingehend vor und argumentiert, dass mit dem lyrischen Darstellungsverfahren das vielversprechende Angebot einer soziologischen Heuristik vorliegt, eine Form von emotionaler Einbildungskraft zu stimulieren. Nachdem der Artikel die programmatischen Leitlinien einer deskriptiven Soziologie vorgestellt hat, nähert er sich aus drei Perspektiven Abbotts lyrischer Soziologie, um deren substanziellen Beitrag zu einer deskriptiv verfahrenden Soziologie zu profilieren: Erstens stellt der Artikel die charakteristischen Merkmale von lyrischer Soziologie vor; er qualifiziert zweitens ihren heuristischen Nutzen. Und drittens prüft der Artikel die Potenziale und Grenzen einer lyrischen Soziologie am Beispiel der ethnografischen Forschung des Anthropologen Didier Fassin. The article draws on recent debates about empirical Sociology’s lack of imagination in order to champion the strength and virtue of a peculiar type of close, but also thin description as a central mode of social scientific observation. A case in point for the evocation of a Descriptive Sociology is Andrew Abbott’s neologism lyrical Sociology . Examining the lyrical-sociological approach, the article claims that the concept presents a distinct heuristic for the elicitation of a more colorful and vivid sociological imagination, namely, an emotional imagination in the empirical toolbox of the Descriptive sociologist. After the article considers the potential of description as a specific type of sociological representation and thus discusses the concept of the social imaginary from a methodological point of departure, the article suggests three vantage points to qualify the lyrical mode as a sociological Descriptive: First, it presents its central properties, thereby referring to the notion of a so-called “Descriptive turn”; second, it examines the heuristic value of lyrical Sociology. And third, the article juxtaposes lyrical Sociology and the compelling work of French-American anthropologist Didier Fassin to evaluate the potential but also the limits of lyricism within the sociological craft.

Brian Leiter - One of the best experts on this subject based on the ideXlab platform.

  • The Methodology of Legal Philosophy
    Oxford Handbooks Online, 2016
    Co-Authors: Alex Langlinais, Brian Leiter
    Abstract:

    Legal philosophy, certainly in the Anglophone world and increasingly outside it, has been dominated for more than a half-century by H.L.A. Hart’s 1961 book The Concept of Law (Hart 1994 [the 2 nd edition]). Unsurprisingly, then, methodological debates in legal philosophy typically scrutinize either one of two (related) methodological claims in Hart’s classic work. The first is that his theory is both general and Descriptive (Hart 1994: 239). The second is that his theory is an exercise in both linguistic analysis and Descriptive Sociology (Hart 1994: vi). What do these two claims reveal about Hart’s theoretical ambitions and methodological commitments?

  • The Methodology of Legal Philosophy
    2012
    Co-Authors: Alex Langlinais, Brian Leiter
    Abstract:

    This is the revised and penultimate version of this paper. The essay surveys issues about philosophical methodology as they arise in general jurisprudence. Certainly in the Anglophone world and increasingly outside it, H.L.A. Hart’s 1961 book The Concept of Law has dominated the discussion. Unsurprisingly, then, methodological debates typically scrutinize either one of two (related) methodological claims in Hart’s classic work. The first is that his theory is both general and Descriptive (Hart 1994: 239). The second is that his theory is an exercise in both linguistic analysis and Descriptive Sociology (Hart 1994: vi). We explicate both ideas, arguing, in particular, that (1) Hart aims to give an essentialist analysis of law and legal systems (a point clearest in those who follow him like J. Raz, J. Dickson and [though less of a follower] S. Shapiro), and (2) we can make sense of the linking of linguistic (and conceptual) analysis and Descriptive Sociology if we understand "law" as a constructed bit of "social reality" in something like John Searle's sense. The ensuing methodological debates in legal philosophy can then be understood as arguing against either linguistic or conceptual analysis (naturalists like B. Leiter), or against the idea of a purely Descriptive jurisprudence (in different ways, J. Finnis, S. Perry, M. Murphy, L. Murphy, R. Dworkin).